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") that their wage loss benefits have been correctly calculated. A teleconference hearing was held on September 23, 2025 to consider the claimant's appeal.

Issue

Whether or not the claimant's wage loss benefits have been correctly calculated.

Decision

The claimant's wage loss benefits have been correctly calculated.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. VR 08/20, dated November 26, 2020. The background will therefore not be repeated in its entirety

Pursuant to Appeal Commission Decision No. VR 08/20, the Appeal Commission determined the claimant's application for compensation was acceptable and the claimant's file was returned to the Program for further adjudication.

On March 28, 2022, the Program wrote to the worker, advising the claimant of the various benefits they were entitled to. With respect to wage loss benefits, the Program requested income information from the claimant for two years prior to the incident. As Decision No. VR08/20 established the claimant became aware of the full nature and effects of the incidents on their mental health in August 2017, the Program requested 2015 and 2016 information from the claimant. The claimant provided the Program with their notices of assessment for those years.

The Program advised the claimant on June 21, 2023 that an error had been made as at the time of the incidents, the claimant was a child and was not employed however, as a previous decision had been made to provide wage loss benefits, the Program would uphold that decision. The program then noted the claimant was entitled to 55% of their gross earnings earned in the 12-month period prior to the incidents. Again, noting an error had occurred and 2 years' information had been requested from the claimant, the Program calculated an average of those 2 years and calculated a weekly benefit the worker would be entitled to. The Program noted the worker was in receipt of provincial disability benefits which exceeded the amount the claimant was entitled to under the Program and as such, advised the claimant it would be more beneficial for the claimant to continue to receive their disability benefit and no wage loss would be paid.

The claimant requested the Program reconsider the decision not to provide wage loss benefits and on May 16, 2025, the Executive Director of the Program advised the claimant the previous decision was upheld.

The claimant filed an appeal with the Appeal Commission on June 3, 2025 and a hearing was arranged.

Reasons

Applicable Legislation

The appeal panel is bound by The Victims’ Bill of Rights (“VBR”) and the regulations under that Act. The VBR creates a mechanism for victims of crime to make application for compensation for injury resulting from the commission of an offence.

Section 47 of the VBR allows a victim to be reimbursed for certain kinds of expenses incurred as a result of the injury, in accordance with the applicable regulations. As set out in Section 47(c), this includes compensation for loss of wages if the victim is disabled by the injury. Section 49 of the VBR provides that compensation may be paid in a lump sum, by periodic payments or both, and may be subject to terms and conditions that the director considers reasonable.

Section 59 requires that the director must give written notice of their decision on determining an application for compensation under the VBR and provides that a claimant has the right to request reconsideration of that decision. A reconsideration decision may be appealed pursuant to Section 60 of the VBR.

The Victims’ Bill of Rights Regulation, Manitoba Regulation 214/98, (the “Regulation”) sets out in Section 8 that the amount of wage loss compensation is 55% of the victim’s gross reported wages or earnings for the 12-month period immediately before the incident, up to a maximum of $468 per week.

Claimant’s Position

The claimant appeared in the hearing on their own behalf and made an oral submission to the panel. The claimant also provided testimony through their own presentation and through answers to questions posed by members of the appeal panel.

The claimant’s position was that they are entitled to wage loss benefits. The claimant advised the panel that the Program indicated they could choose which year to use for income calculation purposes. The claimant’s position is that this was the Program’s error, and as this was not their fault they should be compensated as was initially advised by the Program.

The claimant explained that they experience daily struggles associated with the trauma from the incidents they suffered as a minor. The claimant advised the panel that there were years they were unable to work due to their mental instability as a result of the incidents.

The claimant’s position is that the Program should use the last year in which they were able to work a full-time job.

Analysis

The question on appeal by the claimant is whether the claimant’s wage loss benefits have been correctly calculated. For the claimant’s appeal to succeed the panel would have to determine that the director failed to appropriately apply the provisions of the VBR and the Regulation in determining the amount of the claimant’s wage loss benefit entitlement. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore the claimant’s appeal is denied.

In making its determination, the panel considered the evidence on file, the testimony provided at the hearing and the applicable legislation governing wage loss compensation under the VBR.

Section 8 of the Regulation provides that wage loss benefits are calculated as 55% of the victim’s gross wage or earnings for the 12-month period immediately preceding the incident, subject to a weekly maximum. The claimant submits that the Program erred in its calculation by relying on an average of two years of income rather than conducting a more individualized assessment or relying on other income information. The claimant also argues that because they were not working at the time of the incidents, different principles should apply.

The evidence confirms, and the claimant acknowledges, that they were a minor and not employed during the 12-month period immediately before the incidents. The legislation requires actual earnings from that period. No discretion is provided in the legislation to impute earnings or apply alternative sources of income in the instance where a claimant had no earnings in the period in question.

Although the Program erred in initially seeking two years of income information, the Program ultimately relied on the information provided by the claimant in an effort to uphold the wage loss benefits previously granted, despite the absence of eligible earnings under the Regulation. The panel accepts the Program’s explanation that it applied the best available information, even though the strict application of the Regulation would have resulted in no wage loss entitlement for the claimant.

The panel notes that the VBR and Regulation do not authorize wage loss determinations based on projected or potential income, rather they require a calculation tied directly to gross earnings in the prescribed period.

The panel also considered whether any provisions within the VBR offered discretion that could affect the calculation. While certain sections allow for reimbursement of specific expenses and provide mechanisms for reduction in specified circumstances, none permit the director or the panel to adjust the wage loss formula outside the parameters set out in Section 8 of the Regulation.

In this instance, the Program’s calculation, using the claimant’s 2015 and 2016 income, resulted in a benefit entitlement lower than the claimant’s provincial disability benefits. Therefore, the claimant was advised that no wage loss benefits would be paid. This does not constitute an incorrect calculation.

The claimant’s evidence was that the Program advised them in error that they could provide income information for a year of their choosing. The panel accepts that incorrect information was given by the Program in the past, however, this approach to calculating the claimant’s income is not consistent with the legislation.

The panel finds that the Program’s use of the claimant’s 2015 and 2016 income represented an attempt to uphold the claimant’s entitlement as generously as possible. The panel therefore confirms the Program’s decision.

The claimant’s appeal is denied.

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 November, 2025