THE CRIMINAL INJURIES COMPENSATION BOARD

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1 THE CRIMINAL INJURIES COMPENSATION BOARD BRIOUX LAW OFFICE 739A Arlington Park Place Kingston, Ontario K7M 8M8 Paul A. BriOUI Tel.: Fax: Kingston and the 1000 Islands Legal Conference

2 For many people injured as the result of a violent crime in Ontario, the sad reality is that the perpetrator is impecunious or uninsured. Even when the offender does hold a valid insurance policy, most often the insurer will not respond to the claim because the act perpetrated, be it an assault, sexual assault, criminal harassment or any other violent crime, was an intentional act and the claim is not founded in negligence. Where does such an innocent victim turn? Consider the Criminal Injuries Compensation Board. This little gem may provide a ray of light at the end of the tunnel. Background The Criminal Injuries Compensation Board (CICB) was originally created to assist law enforcement officials who were injured as a result of criminal acts. It has since been expanded to provide compensation to any victim of a violent crime that occurred in Ontario. The CICB gets it's authority trom the Compensationfor Victims of Crime Act (the "Act") which is a concise piece oflegislation containing a mere 29 sections detailing all aspects of the Boards ability. As a quasi-judicial board, the CICB is subject to the Statutory Powers Procedure Act and the Board also has it's own rules and procedures. Who can Apply? There are several categories of clients who may wish to make an application to the CICB: (1) As stated above, victims of violent criminal acts may apply. Most commonly these people were the victim of an assault or a sexual assault, but most other criminal code offences which lead to injury may also be compensated; (2) In addition, the Board will consider applications from a third party where that person is primarily responsible for the victim of a crime and where that person has suffered a loss of income or incurred expenses in relation to the victim's injury or death;

3 (3) The dependants ofa deceased victim, in the case of murder, can also make a claim for compensation; -3- (4) Finally, persons who are injured while trying to prevent a crime or while assisting an officer in making an arrest are eligible for compensation. One very important exception to the above is that injuries received from a motor vehicle accident, whether charges are laid or not, including hit and runs or drunk driving are excluded under the Act. Only claims where the vehicle is specifically used as a weapon is permitted. have taken place here. Claims should be filed within two years from the date of the occurrence. Section 11 of the Act states that proof of a conviction shall be taken as conclusive evidence that the offence has been committed. 11. If a person is convicted of a criminal offence in respect of an act or omission on which a claim under this Act is based, proof of the conviction shall, after the time for an appeal has expired or, if an appeal was taken, it was dismissed and no further appeal is available, be taken as conclusive evidence that the offence has been committed. However, even ifthere is no conviction or even where no charges have been laid, your client may still be eligible for compensation pursuant to Section 16 of the Act. Unlike the criminal justice system, the inability to form the requisite criminal intent is also not bar to compensation.

4 (I) An order for compensation may be made whether or not any person is prosecuted for or convicted of the offence giving rise to the injury or death but the Board may, on its own initiative or upon the application of the Minister, adjourn its proceedings pending the fmal determination of a prosecution or intended prosecution. (2) Even though a person for any reason is legally incapable of forming criminal intent, the person shall, for the purposes of this Act, be deemed to have intended an act or omission that caused injury or death for which compensation is payable under this Act. What is the Process? An application to the CICB begins with the completion of an application fonn. This form is available only through the CICB and may be requested by phone, mail or fax. The original forms that are obtained from the Board must be completed and returned. The Board will not accept photocopies of the originals. Once the original application is received by the Board, a Compensation Analyst is assigned to the file. This person decides what documents will be required to complete the application process and support the claim. A letter is typically forwarded advising you of what further information may be required to adequately deal with the file. This may include hospital, medical or therapy records or court documents relating to the incident. The Board will pay for reports which it has requested. The analyst will also contact the local authorities to obtain incident reports and the police file if the crime was reported. Once all of the required material has been collected and forwarded to the Board, a letter is sent by the Board confirming such and advising that the file is now ready for a hearing.

5 -5- Written Hearings If your client's attendance is not required by the Board at an oral hearing, a written hearing may be ordered. This decision is at the sole discretion of the Chair of the Board. You will receive notification of the date and time that the written hearing is to take place so that you can be sure to have all of the appropriate information before the Board well in advance of that date. Although not mandatory, it is good practice to prepare and deliver a written brief which includes reference to any specific documents which you wish to bring to the Board's attention. It is also a good idea to provide any additional material that you wish the Board to review even if they did not specifically request it. As with any file, it is best to provide evidence which is as accurate and up to date as possible. The Board suggests that it should receive all material at least 45 days before the hearing date, however, this is not a rule which is strictly adhered to and evidence will be considered even if it arrives much closer to the hearing date. Oral Hearings There are two ways to have an oral hearing. First, if you disagree with the decision made as a result of a written hearing you may request an oral hearing with two new Board members. If an award was made as a result of the written hearing, the compensation cheque must be returned to the Board in order for a new hearing to be scheduled. Despite the fact that the file has already lingered in the process of arriving at the original hearing date, it will not be given priority in detaining a new hearing date so you can expect another long delay. The new hearing panel has the authority to confirm the original order, increase or decreases the size of the award or deny the claim is it's entirety.

6 -6- Second, after the initial review of the file it may be deemed necessary by the Chair that your client should be present for an oral hearing. Notice will be provided to you of this decision and will also provide the date, time and location that the hearing is to take place. If you practice in an area outside of a major centre, the Board does travel and may conduct a hearing closer to the town in which your client resides. Once notified of the time and place of the hearing, the Board will conduct such with or without your client's presence. The Board may make a decision in the absence of your client by relying on the documents in the file. Needless to say, this is never a good idea and every effort should be made to ensure your client's attendance at the hearing. As with a written hearing information which is not included in the material originally submitted to the Board may still be used at the hearing. It is suggested that any additional documents be submitted at least 45 days in advance of the hearing date but this is not a hard and fast rule. Time lines may be expanded with the permission of the Board which typically appreciates having as much accurate and up to date information as possible to make it's decision. Although the hearings are infonnal, parties are asked to swear or confmn that the infonnation they are giving is the truth. As counsel you should be prepared to give a brief opening and proceed to examine your client. Again the standard rules of evidence and questioning are not strictly adhered to so you can be sure to guide your client through the most relevant evidence. Be prepared for steady interruptions from the Board as they typically playa very pro-active role in the questioning of the witness as well. As with any hearing, preparation is the cornerstone of your presentation and a thorough knowledge of the relevant material is crucial to make sure that the Board's questions can be answered satisfactorily.

7 .., In addition to your client, other witnesses may also attend an oral hearing. These may include the investigating officers who are typically summonsed by the Board; and any additional witnesses you may need in order to support your client's case, ie. witnesses of the incident, experts, or family members if necessary. Alleged offenders will receive notice of the hearing and may also be present. It is important to note that this applies only to alleged offenders and that a convicted offender will not receive notice of the hearing. As with obtaining a hearing date, decisions require patience as they are typically not given for at least 20 weeks after the hearing. When a decision is made it will be delivered to you and your client in writing. A cheque will also be sent directly to your client if the decision has been made in their favor. Should you disagree with a decision rendered after an oral hearing (either at fitst instance or after a review of a written decision) you can appeal to the Superior Court of Justice on a point of law only and such an appeal must be brought within 30 days of receiving the decision. An appeal which disputes only the amount of the award is not pennitted. What kinds of compensation are available? The CICB compensates victims and/or their families for many of the same things that would typically be included in a claim before the courts. Pain and suffering, income loss, medical, dental or therapeutic treatment, as well as legal costs may be awarded. In the case of a fatality, the Board may also pay for funeral and burial expenses as well as loss of support for the dependants of a deceased victim. However, the CICB does not compensate for damaged or stolen property; legal fees for criminal and/or civil proceedings; damages occasioned by the mental distress of having to

8 -8- testify in criminal court; or workplace accidents. In determining quantum, the Board will consider the sufficiency of all of the evidence presented by your client, their co-operation or lack thereof with the police, and whether they contributed to the incident. A lump sum award for pain and suffering may be granted and is typically based on the degree of violence involved in the incident; the seriousness of the injuries sustained as well as the possibility of continued disability. Awards can range up to $25,000 taking into account all of these factors. As with any other proceeding, the maximum award is typically reserved for the most severe injuries. If there is more than one person impacted by the criminal act, the Board may award a maximum of $150,000 to all of the applicants. In the alternative, periodic or monthly awards may be granted in cases where there is permanent injury or loss of support. The maximum amount which may be granted by the Board is $1,000 per month to a maximum of $365,000 for all of the applicants affected by a single occurrence. If a periodic payment is ordered in addition to a lump sum payment, the amount of the lump sum component may not exceed $12,500 pursuant to section 19(1) of the Act. As with many other schemes, periodic payments may be reviewed by the Board at any time pursuant to section 25 of the Act. Maintenance of a child born as the result of a sexual assault may also be considered under this heading. A claim for income loss may be awarded if the victim is unable to work as a result of the injuries

9 -9- sustained from the criminal act. In order to be eligible of this benefit, the victim must have either been working or had a fum offer of employment at the time of the injury. The Board will consider evidence of pay stubs or income tax returns in their decision. In addition, the medical documentation must support the inability to work. The inability to work may be either total or partial. The maximum award that may be granted is $50 per day or $250 per week to a maximum of$l,000 per month. Any benefits received from other sources, excepting welfare or family benefits will be considered and may be deducted from this amount. An award for medical, dental or therapy expenses may also be considered by the Board. This may include ambulance fees, eyeglasses, prescriptions, treatment necessary to return the victim to his or her pre-accident condition and/or counseling sessions. Travel expenses may also be considered where the victim has to travel in order to receive appropriate treatment. Section 14 of the Act allows the Board to consider an award for expenses before the actual hearing is held and to make an interim award for such. This can only occur after the Board has received all of the required information including the completed application and supporting police information. In the case of a death resulting ITom a violent crime, there are additional benefits which may be available. First, funeral and burial expenses may be awarded up to a maximum of$9,000. This is designed to compensate for the cost of a casket, cemetery plot, headstone, notices and certificates. Flowers, catering and legal or accounting fees for the estate are not considered. Secondly, a claim may be made by the dependants who relied on the deceased for [mandai support. Evidence of the previous financial support is required to make this kind of award. Loss of support may attract a periodic payment within the limits discussed above.