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Criminal Injuries Compensation (Ontario)
Legal Guide
Ch.12 Orders (01 January 2015)- Overview
- General Issues
- Reasons for Decision
- Legal Costs
(a) Overview
(b) Board Policy
(c) Unused Board Rule-Making Authority
- Interest on Money Orders
- Control of Process
- Unexercised Board Rule-making Authority
1. Overview
Of course, the primary role of the Criminal Injuries Compensation Board is to make orders on procedural matters and compensation award decisions.
Unfortunately, like so many issues with Board practice, the law governing the making of such orders is scattered and includes the Statutory Powers Procedures Act [SPPA], the Compensation for Victims of Crime Act [CVCA], and some court rules (interest on money orders). As well, the Board has some unexercised but related rule-making authority also granted under the SPPA.
2. General Issues
Final decisions and orders must be in writing and, if so requested by a party, be accompanied by reasons [SPPA s.17(1).
The law governing the following order-related topics is governed by general provisions of the Statutory Powers Procedures Act (SPPA):- interim orders,
- final orders and decisions,
- service and deemed date of receipt of final orders and decisions,
- reasons for decision,
- orders to control process,
- manner of service of decisions,
- the varying of its own orders for technical errors.
These issues are discussed under these topics in the chapter "Orders" in the SPPA legal guide, linked here:
Administrative Law (Ontario)(SPPA): Ch.7: Orders
3. Reasons for Decision
As mentioned above final decisions and orders must be in writing and - if a party requests - must be accompanied by reasons [SPPA s.17(1).
The Board Rules are silent on the requirement for reasons for decision so there is no general legal requirement for them in the absence of a s.17(1) SPPA request. In order to preserve review and appeal rights - and to compel thorough attention to their case - parties are well-advised to request "reasons for decision" by letter to the Board at or well-before the hearing stage.
The desirability of detailed, reasoned and articulate reasons for appeal purposes is discussed at length in the SPPA chapter linked directly above.
A Board member was criticized in 1983 for providing inadequate "reasons for decision". In Batic v CICB (Ontario) 1 OAC 68 (Div Ct, 1983) the Court - while upholding the Board's ruling - criticized the Board for failing to sufficiently articulate reasons for the decision, including the role of any statutes in its reasons:It cannot be stated too frequently that it is desirable that a tribunal of this nature whose findings affect many individuals in unfortunate circumstances should state for the benefit of those individuals and of others who may in the future be affected, the grounds upon which it reaches its conclusion with some precision. It is desirable also that the Board indicate with precision the way in which it relates those parts of the statute on which it relies to its findings of fact. The Board's failure to do so here is regrettable.
4. Legal Costs
(a) Overview
In civil courts it is common for the "losing party" to be ordered to pay some or all of the "winning party"'s legal costs and disbursements, from both interlocutory hearings (ie. motions) and final hearings (ie. trials).
The Board has been given broad legislative authority to "make such order as to costs as it thinks fit." Such awards are not subject to the maximum award caps as discussed in the chapter: "Compensation" [CVCA s.22].
(b) Board Policy
The Board's "Fact Sheet: What Kind of Compensation is Available to Me" (01 Feb
2006) states: Legal representation and costs: may be considered if a lawyer assists with a claim to the Board, but not for attending a Board hearing or any court proceedings (ie. an appeal to the Divisional Court). The above statement of policy is a plainly illegitimate attempt to limit or "fetter" the discretion by the Board in the award of legal costs (see the discussion of "Fettering Discretion" in the chapter "Questionable Board Practices"). Under s.22 of the CVCA it is for the "presiding Board" at a hearing to decide whether to make a costs order, not the "administrative Board" by policy.
The total paid by the Board in the fiscal year 2002/3 for costs was only $1,960 over 9 cases. In 2001/2 the figures were $5,910 over 14 cases. The awarding of legal costs is clearly the exception to the rule and likely reflects the "fettering" criticized above.
(c) Unused Board Rule-Making Authority
While the Board has additional authority (mentioned below: "Unexercised Rule-Making Authority") to make rules regarding cost awards where a party's behaviour has been "unreasonable, frivolous or vexatious", this authority has not been exercised. In any event, the CVCA s.22 authority gives the Board a broader costs discretion and is paramount over any more restrictive Rules that might be made [SPPA s.17.1(4)].
5. Interest on Money Orders
Civil law generally divides the issue of interest into two topics, defined by the time over which the issue is considered: pre- and post-judgment interest.
Pre-judgment interest concerns the period between the date of injury and the date of compensation order. There is no legal entitlement to interest for this period, and notionally any time delay between injury and order is dealt with bythe Board when ordering the quantum of its main compensation award.
Obviously post-judgment interest is only a concern where a an order for the payment of money is not promptly complied with. If (which should be unlikely with Board orders) such an order remains unpaid - and collection efforts are commenced with the courts - interest under COURT rules may commence from that time. The post-judgment interest issue is discussed in the chapter "Enforcement" in the SPPA legal guide:
Administrative Law (Ontario)(SPPA): Ch.8: Enforcement
6. Control of Process
A tribunal has broad jurisdiction to make orders with respect to its own procedures and practices with respect to any particular proceeding [SPPA s.25.0.1]. Similarly, a tribunal may make orders and give directions as it considers proper to prevent abuse of its processes [SPPA s.23(1)]. Such concerns might include behaviour of a party, security and frivolous or vexatious proceedings - amongst others.
These are general powers to make orders which may take many forms in many circumstances - as long as they are closely tailored to their purpose, exercised with restraint and in accordance with basic common law principles of natural justice, and are not inconsistent with superior laws.
7. Unexercised Board Rule-making Authority
The Board has - but has not yet exercised - ADDITIONAL rule-making authority under s.25.1 SPPA regarding:- service of and deemed date of receipt of decisions [SPPA s.18(1)];
- the making of cost awards where a party's behaviour has been "unreasonable, frivolous or vexatious" [SPPA s.17.1];
- the variation of its own orders [SPPA s.21.2].
These issues are discussed in the SPPA legal guide in chapters in the section "Tribunal Rule-Making Authority".
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