The Appeal CommissionThe Workers Compensation Act of Manitoba

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 May 8, 2024 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

The application for compensation is not acceptable.

Background

The claimant applied to the Program for compensation on January 11, 2023 in relation to an incident that took place on September 4, 2019 in Manitoba. The claimant reported they were sexually assaulted by their healthcare provider and as a result, developed Post Traumatic Stress Disorder (“PTSD”).

On March 13, 2023, the Program determined that the claim was not eligible for compensation under s 51(1) of the VBR as the claimant did not file the application for compensation "…within one year of 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."

The claimant submitted a Request for Reconsideration to the Program on March 30, 2023. In their submission, the claimant noted that following an investigation into the incident between December 2019 and December 2022, they made a complaint to police. During the investigative process, the claimant received counselling services, and learned of the Program through their counsellor. The claimant soon after applied to the Program for compensation. The claimant also noted that shortly after the incident, they were diagnosed with a major health condition requiring immediate treatment.

On November 30, 2023, the Director of the Program confirmed the claimant's application was made outside the one year time limit allowed for under the legislation and as such, the claim was not eligible for compensation.

The claimant appealed the decision to the Appeal Commission on December 24, 2023 and a hearing was arranged.

Reasons

Applicable Legislation

The panel is bound to apply the provisions of The Victims’ Bill of Rights ("the VBR") and the regulations under that law. 

The VBR provides in s 46(1) that for purposes of determining compensation, a person is a victim if they are injured or die because 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. Section 47 of the VBR provides that a victim who is injured as a result of such an incident is entitled to reimbursement for certain expenses as set out in the regulation if incurred as a result of the injury, as well as to 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.

The VBR requires, in s 51, that an application for compensation must be made within one year of the incident that results in the victim’s injury 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. The VBR allows an extension of the time to bring an application under s 51 where it is appropriate to do so. Section 52(1) of the VBR requires that on receipt of an application for compensation, the director must determine whether compensation is payable and if so, in what amount.

The Victims’ Rights Regulation, Manitoba Regulation 214/98 (the “Regulation”) provides in s 4 that for the purpose of s 46(1)(a) of the VBR, an application for compensation may be made in respect of the offences under the Criminal Code (Canada) listed in Schedule A to the Regulation.

Claimant’s Position:

The claimant appeared in the hearing and made an oral submission on their own behalf. The claimant’s position is that the appeal should be granted and the application for compensation accepted because they made their application as soon as they learned of the existence of the program.

The claimant outlined that they were focused initially on pursuing their complaint against the healthcare provider with that provider’s professional regulatory body and explained that process took place over some two years, beginning in early 2020 and concluding in late 2022. Through that process, the claimant was referred to a counsellor, and they confirmed that they learned of the program through that counsellor, who they began seeing in late 2022. The claimant advised that their counsellor described the Program to them as a well-kept secret and urged the claimant to make a claim in relation to their psychological injury.

The claimant further advised the panel that they underwent treatment including surgery on December 12, 2019 in relation to their health condition, unrelated to the incident, and made a full recovery from that condition. The claimant noted they subsequently sought treatment from a counsellor in February and March 2020 in relation to their concerns arising from the incident on September 4, 2019 and were sent for a psychiatric evaluation around that time, which resulted in a diagnosis of PTSD. The claimant confirmed that they first sought psychological care in relation to the incident upon advising their family physician in July 2020 of their increasing symptoms. The family physician referred the claimant to a psychologist who assessed them and provided a diagnosis of PTSD, as confirmed by the August 18, 2020 report. The claimant confirmed they received medication for their PTSD beginning in September 2020 which provided some relief after 6-8 weeks and began seeing a psychotherapist in late 2020 or early 2021. In December 2022, the professional regulator arranged for the claimant to see another counsellor for EMDR treatment, and that counsellor advised them to make a claim to the Program.

The claimant confirmed that they made a report to police regarding the incident in January 2023, and explained that they put off making this report because they felt they could not handle more trauma and could not fathom interacting with another system in relation to this injury. The claimant further noted that they were advised by their counsellor that there was no time limit for reporting a sexual assault to police and they relied on that advice.

Analysis:

The issue on appeal is whether 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 was injured because of an incident in Manitoba caused by another person that is a specified offence under the Criminal Code (Canada) and made application for compensation as required under the provisions of the VBR. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the claimant’s appeal is denied.

For the claimant’s application for compensation to be accepted, the panel must first determine that the claimant is eligible to apply. To be eligible for compensation under the VBR, the claimant must meet the definition of victim under the VBR and make their application in the time required by the VBR. In this case, the panel is satisfied that the claimant is a victim, as the evidence before the panel confirms the incident giving rise to the claim for compensation took place on September 4, 2019 in the Province of Manitoba and was caused by an act of another person that is an offence under the Criminal Code (Canada) as specified in the regulations. While no criminal charges have been laid, the VBR does not require charges to be laid for an application for compensation to be accepted, provided that the nature of the incident giving rise to the application is an offence under the Criminal Code. The panel is satisfied that is the case here.

The VBR also requires that a victim apply for compensation within one year after the date of the incident that results in their injury or within one year after the date when they become aware of, know or ought to know the nature of the injuries and recognize the effects of the injuries. The VBR allows for extension of this limitation period where it is appropriate to do so.

In this case, the one year time frame from the date of the incident ended as of September 3, 2020. The evidence further indicates that the claimant learned their psychological diagnosis upon assessment that took place on August 18, 2020, but did not make their application to the Program until January 11, 2023, which is well beyond one year after both the date of the incident and the date of diagnosis of their injury.

The panel also considered whether the time for application should be extended, applying the discretion given in s 51(2) of the VBR. The panel noted that the Compensation for Victims of Crime Policy (the “Policy”) describes when such an extension should and should not be given. The Policy outlines that applicants have a right to make an application upon first learning of the nature or impact of an injury even if this occurs many years post-incident, and requires that in such cases, the applicant must be able to prove when and how that knowledge occurred. The Policy further confirms that an extension will not be granted solely based on a claimant’s lack of knowledge of the existence of the Program and sets out that the primary consideration in exercising this discretion should be on the impact the delay may have on the Program’s ability to properly investigate and adjudicate a claim. While the Policy does not bind the panel, we rely upon it as guidance in the exercise of our discretion to extend the time for application.

Here, the claimant explained they were at first distracted by the urgent nature of the treatment of their health condition diagnosed in fall 2019, but also testified that this condition was resolved within a few months after the incident. The claimant further explained they did not have the emotional capacity to deal with both the professional regulatory complaint process and a criminal process at the same time and in any case, did not learn of the existence of the Program until the regulatory process ended. The claimant offered only their testimony as evidence in support of these explanations, which the panel accepts and relies upon. 

The panel considered whether the circumstances described, and the explanations offered by the claimant justify an extension of time for their application to the Program. We noted the claimant’s treatment for their medical condition concluded in late 2019, and there is no evidence before us to indicate the claimant was medically incapable of pursuing a claim to the Program. Further, while there is evidence that the claimant was experiencing a significant psychological injury in relation to the incident, there is also evidence that the claimant was receiving appropriate treatment beginning in fall 2020 and was sufficiently capable to represent themself in the professional regulatory complaint process ongoing from 2020 through 2022, despite this injury. As such we do not find that there is evidence the claimant was medically or psychologically unable to file an application. We note the claimant’s evidence that they did not learn of the existence of the Program until late 2022 or early 2023 and that they applied soon thereafter. While the panel accepts this to be true, we note the Policy explicitly provides that an extension will not be granted solely because the applicant was unaware of the Program unless the resultant delay was no more than 90 days. That is not the case here.

Having considered the evidence and claimant’s explanations for the delay in applying for compensation from the Program, the panel finds that an extension of the time for application is not appropriate in these circumstances. We therefore find that the claimant’s application is out time.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the application for compensation is not acceptable. The claimant’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. MacKay, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of May, 2024