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 February 15, 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 filed an application for compensation under the Program on October 2, 2022 for incidents which took place between July 1972 and December 1972 in which the claimant was assaulted. The claimant indicated the incidents had recently been reported to the police.

On June 5, 2023, the Program determined that the claim was not eligible for compensation under Subsection 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 July 1, 2022, noting that they were a child when the incidents occurred and were not able to file an application at that time. Also, the claimant noted they only recently became aware of the Program when they filed their police report.

On October 19, 2023, the Director of the Program confirmed the prior decision to deny the claimant's application, noting the incidents took place between 1972 and 1973 and the application was received by the Program on October 11, 2022, beyond the two-year time limit set out in the applicable legislation at that time. It was further noted the delay in reporting the incidents to the police had led to the police being unable to conduct a proper investigation into the incidents.

The claimant appealed the decision to the Appeal Commission on November 24, 2023 and hearing was arranged. Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and on April 29, 2024, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The panel is bound by the provisions of the VBR and the regulations under that Act.

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. 

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 the adjudicator must review each application 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. 

Factors which may support the granting of an extension are set out in the Policy and 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 in person and 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 provided the following reasons, as set out in their written submission dated July 1, 2023, as to why the application should be accepted: 

• The child abuse happened when the claimant was 4 years old and they could not file an application at that time 

• The claimant did not know about the Program as a young adult 

• The claimant only recently made an RCMP report against the abuser 

• The claimant only learned about the Program upon filing the RCMP report.

The claimant's position is that they were the victim of a crime and ought to receive benefits under the Program.

Analysis

The issue before the panel is whether or not the application for compensation is acceptable. In determining whether the application is acceptable, the panel must determine whether the application was eligible. In order to be eligible, the panel must determine that: 

• The application was filed within the allowable timeline 

• The event occurred in Manitoba 

• The person making the application is an eligible applicant 

• An injury or death was sustained 

• The injury or death was the result of an act that is one of the criminal code offences specified in the regulation.

The claimant describes physical abuse at the hand of a "step-dad", which occurred approximately 50 years ago in Manitoba. The claimant stated that they were removed from their biological family by child and family services due to the physical abuse.

The claimant spoke of injuries to their fingers (due to frostbite from being forced to remain outside) and injuries to their abdomen/stomach after being hit by the “step-dad”, which required surgery. At the hearing, the claimant stated that they could not go into specifics as to whether they were kicked or punched but they do know there was a cyst growing in their stomach area, that required immediate surgery. The claimant has records that confirms they attended the St. Boniface Hospital; however the records do not confirm that the abuse the claimant recounts was the cause of the visit to the hospital. The records show that the claimant had severe epigastric pain, and a mass and hematoma just to the left of their umbilicus. The October 10, 1973 letter from St. Boniface Hospital to the Children’s Aid Society notes specifically “There was some question whether [the claimant] had been injured in some form or an accident but nothing was ever determined as to what actually happened to [the claimant].” In a report dated July 16, 1973, it was noted that when the claimant was asked about the bruises they stated “my dad hit me”.

However, there is a lack of evidence before the panel as it relates to the claimant’s epigastric pain and stomach mass. Furthermore, there is a lack of evidence before the panel at this time to confirm the injuries to the claimant’s fingers or stomach were due to the alleged abuse.

The panel also notes that the application for compensation was made only recently and not within the required timeline for filing an application as set out in the VBR. The panel has considered whether an extension of the timeline for filing an application is warranted in these circumstances. The limited evidence before the panel does not support the granting of an extension. The panel may have been persuaded to extend the timeline if there was compelling evidence to confirm how the injuries were caused, as the panel accepts that in some instances the claimant may require more time than others to deal with trauma. Unfortunately, the evidence is not such in this case.

The claimant has not argued, nor is there sufficient evidence to show, that the claimant was medically or psychologically incapable of filing an application since they reached the age of majority. The panel accepts that the claimant was a minor at the time of the reported incidents, however the claimant has been an adult for some 30 years.

The main issue that presents itself with the delay of filing the application is that it hinders the Program’s ability to properly investigate and adjudicate a claim. While charges by police are not required for a claim to be accepted, the evidence of the claimant is that the police have been unable to locate the individual and therefore, it appears that the significant delay in applying did impact their investigation. Similarly, the lack of contemporaneous evidence regarding the alleged abuse has negatively affected the panel's ability to investigate and adjudicate the claim. The significant delay in applying leads the panel to conclude the time limit for making an application should not be extended.

Considering the limited evidence from independent sources, the panel is unable to find that the claimant sustained an injury as a result of one of the incidents defined under the VBR. In addition, the panel finds that the application was not filed within the prescribed timeline and is unable to find sufficient reasons to grant an extension for filing. Therefore, the panel finds that the application for compensation is not acceptable.

The claimant's appeal is dismissed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 21st day of June, 2024