Decision #01/24 - Type: Victims' Rights

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") denying their application for compensation under The Victims' Bill of Rights (the "VBR"). A hearing was held on March 21, 2024 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

The application for compensation is acceptable.

Background

The claimant filed an application for compensation under the Program on August 2, 2022 for an incident which took place on July 15, 2020 in which the claimant was assaulted. The claimant indicated the incident had been reported to the police.

On December 19, 2022, the Program determined that the claim was not eligible for compensation under s 51(1) of the VBR as the application for compensation was not made within one year after the date of the event or within one year the claimant "…becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries."

The claimant submitted a Request for Reconsideration to the Program on February 15, 2023, noting they had sought treatment with a counsellor who assisted the claimant in contacting the Program. Contact was made with the Program in the fall of 2021. The claimant noted they were provided with an application at that time and completed it as soon as they became aware they may be entitled to compensation.

On June 15, 2023, the Director of the Program confirmed the prior decision to deny the claimant's application noting the delay in making application to the Program made it difficult for the Program to determine the extent of injury.

The claimant appealed the decision to the Appeal Commission on July 19, 2023 and hearing was arranged.

Reasons

Applicable Legislation and Policy

The panel is bound by the provisions of the VBR and the regulations under the VBR. The provisions addressing compensation of victims of crime are set out in Part V of the VBR.

The VBR provides in Subsection 46(1) that for purposes of determining compensation, a person is a victim if he or she is injured or dies as a result of an incident that occurs in Manitoba that is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) as specified in the regulations. Subsection 46(2) provides that it is not a requirement that a person be charged with, or convicted of, an offence in respect of the incident.

Section 47 of the VBR provides that a victim who is injured as a result of such an incident is entitled to reimbursement for expenses prescribed in the regulation that were incurred as a result of the injury, compensation for related counselling services, compensation for loss of wages if the victim is disabled by the injury and compensation for impairment if the victim is permanently impaired by the injury.

Subsection 51(1) of the VBR provides that an application for compensation must be made within one year after the date of the incident that results in the victim's injury or death, or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries.

Subsection 51(2) of the VBR allows for an extension of the time for making an application for compensation where the director considers it appropriate.

The Program has developed a policy (the "Policy") which sets out practices and procedures for granting an extension of time to apply for compensation. The Policy provides that each application is to be reviewed on a case-by-case basis to determine if an extension is warranted. The Policy notes that the primary consideration should be on the impact that the delay in applying may have had on the Program's ability to properly investigate and adjudicate a claim.

The Policy notes that factors which may support the granting of an extension include cases where the applicant was a minor or mentally incompetent, or where the applicant was medically or psychologically incapable of filing an application.

Claimant's Submission

The claimant attended the hearing with the assistance of a support person. The claimant explained to the panel why they believe their appeal should be granted. The claimant also answered questions posed by members of the panel.

The claimant described the events prior to and subsequent to the assault. The evidence provided by the claimant is that she made a police report and then waited to hear from the Program. Her evidence is that she later contacted the Program after not hearing from their office and left a voicemail but still did not receive a call back. She stated that she sought out support through therapy and the clinic she attended assisted her in attempting to initiate discussions with Victim Services. The therapist was eventually successful in contacting the Program. The claimant states that she only received paperwork and the application for compensation just prior to the one-year mark and she completed the application as soon as possible thereafter and provided it to her therapist to mail it in.

The position of the claimant is that she had no control over when the Program would get back to her and she asserts that once she received the application for compensation she completed it in a timely manner. The claimant's evidence is that she was not made aware of the time limit to apply.

Analysis

The issue before the panel is whether or not the application for compensation is acceptable. For the claimant's appeal to succeed, the panel must find, on a balance of probabilities, that the claimant made their application for compensation as required under the provisions of the VBR and was injured because of an incident in Manitoba caused by another person that is a specified offence under the Criminal Code (Canada). As detailed in the reasons that follow, the panel was able to make such findings.

The panel has considered the legislation and the policy related to Statute of Limitations. When an application is made that is not within the prescribed time limit, the manager or claims adjudicator must review the application to determine if an extension is warranted.

In reviewing the evidence before the panel, the panel accepts the evidence of the claimant that they used their best efforts to contact the police in a timely fashion and to submit the application once made available. The delay was outside of the claimant's control.

The panel does not find that the delay in applying has impacted the Program's ability to properly investigate or adjudicate the claim. Therefore, the panel finds there are compelling reasons to justify the granting of an extension of time for filing an application for compensation.

Having concluded that the time for application should have been extended to permit it to be accepted, the panel must next determine whether the claimant meets the definition of victim under the VBR. The panel is satisfied that the claimant is a victim, as the evidence on file and before the panel, confirms that the claimant was injured because of an incident in Manitoba caused by an act or omission of another person that is a specified offence under the Criminal Code (Canada). The panel therefore finds, on a balance of probabilities, that the application for compensation is acceptable. The appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. MacKay, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of May, 2024

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