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Criminal Injuries Compensation
Legal Guide
Ch.13 Reviews and Appeals (01 January 2015)- Overview
- Variation Reviews
(a) Overview
(b) Factors to Consider
(c) Procedure
(d) Board Policy
- Board Review of Single Member Decisions (s.10 Reviews)
(a) Overview
(b) Board Practice
(c) Comment
(d) Stay of Order on Review
. Board Policy
. Stay on Appeal
. Estoppel by Behaviour
. Analysis
- "Correction" Reviews
- Unexercised Board Rule-Making Authority re Reviews
- Court Appeals
(a) Overview
(b) Questions of Law
(c) Board "Information"
- Judicial Review
1. Overview
When a party is unhappy with a Board decision, their mind may turn to the possibility of an "appeal". However parties should also be aware of provisions (which exist with most administrative tribunals) which provide for a "review" of Board decisions as a step before - or simultaneous with - an appeal. Three forms of Board review are discussed in this chapter, along with court appeals and court "judicial reviews".
As is so often the case with the CICB, the law governing reviews and appeals is drawn from several different sources: the Compensation for Victims of Crime Act [CVCA], the Courts of Justice Act [CJA] and the Rules of Civil Procedure [RCP] (a regulation passed under the CJA). As well, the Board has some unexercised but related rule-making authority granted under the Statutory Powers Procedures Act (SPPA).
Board orders and decisions may be subject to:- a "variation review" as to the amount of a compensation order,
- a Board review (of a single member decision),
- a "correction review" for technical error,
- court "appeal" and
- court "judicial review".
While to my knowledge it has not been authoritatively decided by an appeal court yet, it is a near-certainty that CVCA-established reviews and appeal rights are only available for 'final' decisions of the Board - not for procedural orders. Procedural decisions are usually best left for review or appeal in the resulting final decision, although they can be taken to court by way of judicial review (below). It gets even messier when a procedural order has the effect of terminating the proceeding, as for instance in an dismissal for lack of evidence (see the chapter Pre-Hearing Procedures) or a refusal to issue, accept or process and application. These are MORE good reasons why you should get a lawyer at this point.
2. Variation Reviews
(a) Overview
The Board has authority to "vary an order for payment of compensation .... whether as to terms of the order or by increasing or decreasing the amount ordered to be paid, or otherwise" [CVCA s.25(1)]. A variation review may be initiated by the Board itself, the victim, any dependent of the victim, the Minister (Attorney-General) or the offender. Obviously, a "variation review" presupposes that an award has already been made at some point in the past.
In the fiscal year 2002/3 the Board conducted 574 variation reviews, and 403 the year before. Most variation review situations of course involve cases where periodic, rather than "lump sum" payments are awarded. You can expect regular Board-initiated reviews where periodic payments are being made.
Note that a variation review is only with respect to "an order for payment of compensation" and as such is not a procedure available to directly challenge the finding of criminality of the underlying occurrence (ie. liability). In this sense a variation review is like a review of a civil "damages" award.
(b) Factors to Consider
The Board, in a variation review shall consider [CVCA s.25(2)]:- any new evidence that has become available;
- any changed circumstances that have occured or are likely to occur;
- any other matter the Board considers relevant.
In Orr v CICB (Ontario) OJ #2924 (Div Ct, 1999) the Board, on a variation review, terminated periodic payments in the absence of new evidence or change of the applicant's circumstances. The sole reason advanced by the Board was that "the Board feels that this [the total paid-out to date] is a reasonable amount in the context of the Act." A statutory cap on pay-outs had not yet been reached. The Court disagreed with the Board, stating: ... the Board appears to have made its decision solely on the basis of the total aggregate amount paid to date. This in itself is not a valid reason to terminate all payments given the terms of the original order ... (c) Procedure
Variation reviews are conducted using the same procedures as initial applications, but are NOT subject to the two-year application limitation period [CVCA s.6, 25(3)]. As a matter of practice the Board conducts most - if not all - variation reviews by way of written hearing (see the critical discussion of the Board's use of written hearings under that topic in the chapter "Hearings").
(d) Board Policy
In the "Fact Sheet: What Are My Responsibilities" (01 Feb 2006) the Board lists as a claimant responsibility: Make sure you inform the Board of any changes in your situation that may impact your claim such as changes in the injury/medical condition that resulted from the crime of violence for which you have filed the claim. This is a reasonable requirement when it is applied to the situation pre-hearing as it simply gathers more evidence.
However if it is meant to apply to the situation post-award it is an attempt by the Board to 'fish' for changed circumstances which might justify a variation review of a periodic award. This is not a requirement located anywhere in CICB law unless and until a variation review is commenced.
Recall that that a variation review may be initiated by the Board itself, the victim, any dependent of the victim, the Minister or the offender.
3. Board Review of Single Member Decisions (s.10 Reviews)
(a) Overview
Where the decision on a compensation application is made by a one-member panel of the Board, the applicant or the Minister may - within 15 days after service of the decision - require a review of the decision by way of hearing. Notice of such a review specifying the time and place for the hearing shall be served on the parties 10 days before the hearing [CVCA s.10(1)].
The review hearing shall be heard by at least a two-member panel, none of who shall be the member who made the original decision [CVCA s.10(3)]. The Board may add parties to the review proceeding as it sees fit [CVCA s.10(2)]. The order of the review panel may supercedes the order under review [CVCA s.10(4)].
(b) Board Practice
The Board's 2002/3 Annual Report (Table 1) reflects the Board's practice of assigning all written hearings to one-member panels and all oral hearings to two-member panels - even though the law does not restrict the Board in this fashion (see the SPPA chapter "Tribunals").
Further, the Board uses two-member oral hearings for s.10 reviews of one-member written hearings. The Report references these as "doc to oral" reviews, suggesting a standard practice has been established. The Report further indicates that in the last two reporting periods (2001/2 and 2002/3) only ONE s.10 "doc to oral" review has occured in each year. The Report does not reveal the rate of applicant success at written hearings so with this evidence alone it is impossible to determine if this effectively non-existent review rate is a reflection of high written hearing grants (ie. applicant satisfaction) or applicants not pursuing the issue - for whatever reasons. (Note: the overall application 'grant rate' is reporting for 2002/3 at 95%.)
No "standard of review" is established by the CVCA for s.10 reviews. However as it is Board practice to conduct s.10 reviews only from written hearings, and to conduct them as oral hearings, it is reasonable to expect that the review hearing will essentially be conducted "de novo" (ie. as a new hearing) with little or no deference to the authority of the original decision. As the Board has conducted only one s.10 review over the last two years, it is understandable that no procedural guidelines have been established on these issues.
(c) Comment
In the chapter on "Hearings" I criticize the Board's mandatory use of written hearings as lacking legal authority, and argue that parties are entitled to a presumption of an oral hearing. The heavy reliance that the Board places on written hearings - leads me to speculate that the Board somehow views s.10 "reviews" (which it does conduct by oral hearing) as the answer to anyone complaining that their rights are degraded bt a written hearing requirement. That is: if a party feels that their rights are being degraded when their first hearing is "written" - then the Board can point to the s.10 oral review in defence, as though saying: "Here is your oral hearing."
Admittedly this is speculation. However should it prove to be well-founded the net effect of such a position is only to degrade and eliminate a party's statutory right to a full s.10 review by deferring the "real" hearing to that later stage. There would be of course other "prejudice" to parties by requiring additional effort and delay before reaching their "real hearing".
(d) Stay of Order on Review
. Board Policy
The Board's "Fact Sheet: What If I Do Not Agree with the Decision?" (01 Feb 2006) states with respect to s.10 reviews:
If an award was ordered, the compensation cheque must be returned to the Board before the new hearing will be scheduled.
. Stay on Appeal
This policy attempts - amongst other things - to address a problem that occurs in appeal proceedings everywhere: what happens to the original order when it is being appealed (or here, "under review") - is it operative and enforceable - in the "meantime"?. By the above policy statement, the Board clearly intends that the filing of a review legally operates to bar the applicant from entitlement to the money ordered in the original decision - in other words, what is known legally as a "stay on appeal" (or in this case, "stay on review").
. Estoppel by Behaviour
The policy however extends beyond that simple stay issue to to cover the consequences of 'cashing the cheque' issued as a result of the original order. Taken on its face, the above policy bars a review application in any instance where the applicant has cashed the cheque. Legally, this policy asserts a form of "estoppel" - that is, the legal principle that prior behaviour of a party, which is inconsistent with later claims, bars the later claims. Here of course the "prior behaviour" is cashing the cheque and the "later claim" is the filing of the s.10 review.
I note from the discussion above that a s.10 review must be filed within 15 days after service of the decision, so we are talking here about cheques that are issued either simultaneously with the Decision or within 15 days thereafter. Otherwise the rule would not be required as on the filing of a review application the Board could simply withhold the cheque being issued.
. Analysis
Like many of these Board "policies" sprinkled throughout Board "Fact Sheets", forms and other publications this one lacks any specific legal authorization. It's legitimacy - if it is to be found anywhere - lies in general rule-making authority such as under s.25.1 of the SPPA, although even that is dubious (such authority is discussed below under "Unexercised Board Rule-Making Authority re Reviews"). The Board's use of these almost scattered, almost-spontaneous "Board Policies and Practices" are critiqued in the chapter "Questionable Board Practices".
There is nothing particularly pernicious about a "stay on appeal (or in this case, "stay on review"). Indeed, Board decisions are subject to just such a default rule on the filing of a court appeal [SPPA s.25(1)]. The problem of is the operation of the "estoppel" aspect of the policy when cheques are sent prior to the expiration of the short 15-day review deadline. The majority of victims of crime are poor people for whom the temptation to access readily-available cash is stronger than with most. Why should giving in to this temptation amount to a surrender of future appeal and review rights - when the problem could be so easily avoided by withholding the cheque for 15 days?
While I have no evidence of the intention behind the policy, uncharitable speculation would include it within the long list of "gate-keeping" policies and practices which reduce the Board's caseload. Perhaps this is one reason why the last two Annual Reports (2001/2 and 2002/3) indicate that only ONE s.10 review has been heard in over two years.
4. "Correction" Reviews
A tribunal may at any time correct a typographical error, error of calculation or similar error made in its decision or order [SPPA s.21.1]. This is a general SPPA tribunal authority designed for quick repair of simple errors.
5. Unexercised Board Rule-Making Authority re Reviews
The Board has - but has not exercised - additional authority under s.25.1 SPPA to make rules for the review of its own orders. Such rules - if made - would allow it to "within a reasonable time" "review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order" [SPPA s.21.2(1)(2)].
This authority is discussed in the SPPA legal guide in chapter "Review of Orders" under "Tribunal Rule-Making Authority".
6. Court Appeals
(a) Overview
The CVCA provides that decisions of the Board are also subject to appeal to the Ontario Divisional Court on "questions of law", in accordance with the Rules of that court [CVCA s.23].
The Divisional Court has posted a useful Appeal Information Package on its website, explaining some of its procedures to the public.Case Note: Sazant v. R.M. and C.I.C.B. (Div Ct, 2010)
This case ruled that only final orders of the Board may be subject of this statutory appeal, not interlocutory ones, despite the literal wording of CVCA s.23:23. Subject to section 25, a decision of the Board is final except that an appeal lies to the Divisional Court from any decision of the Board on any question of law. Under this meaning of the term "final", a final order is one that - on it's face - definitively ends an application. (b) Questions of Law
"Questions of law" are not evidentiary fact-findings, with the rare exception of fact-finding errors that are "palpable and overriding" (ie. really bad ones). This is a high standard. Otherwise fact-findings based on credibility (ie. believability) of the witnesses and evidence will not be the basis of a successful appeal, and should probably not be attempted.
"Questions of law" can involve any misinterpretation or misapplication of law that has resulted in a substantial prejudice to the interests of a party. Other mistakes of law will not normally result in an appeal remedy unless they are jurisdictional in nature (eg. Board orders compensation beyond its jurisdiction). Questions about the exercise of the Board's discretion will not normally ground an appeal unless the exercise of discretion was based on a significant legal or factual error.
Once you get past the hurdle of convincing the Divisional Court that a significant "question of law" exists, the standard of review on a court appeal is that of "correctness" - which means that the court will not defer to the Board's authority (compare to judicial reviews, below).
Further - just because you have found a legal error - it is probably not a solid basis of appeal unless it has actually resulted in some substantial difference in the result. Technical errors will usually be tossed out by the court.
(c) Board "Information"
The Board's "Fact Sheet: What If I Do Not Agree with the Decision" (01 Feb 2006)states with respect to appeal from a two-member panel decision under s.23 CVCA:This type of decision cannot be appealed based on the amount of the award. This is quite misleading. As discussed above, a court appeal under s.23 CVCA must be based on a "question of law". MOST non-trivial "questions of law" have a potential to change the amount of the award. Further, appeal courts will review the quantum of discretionary awards (such as those of the Board) if they are arrived at by weighing inappropriate legal factors or "palpable and overriding" misapprehension of facts - a "legal" error.
If the Board is to engage in the dubious practice of advising people about their legal rights - and especially their rights with respect to potential proceedings AGAINST the Board (which puts the Board in a conflict of interest) - it is incumbent on them to do so in an accurate and clear manner. It would be much preferrable if the Board were to refrain from such advice altogether - or at least to simply quote the legislation verbatim and advise people to seek legal advice.
This unfortunate statement is an excellent example of misleading and ambiguous statements within the Board's public materials - which can have the effect of "gate-keeping" to reduce its caseload - in this case the number of cases it has in the appeal courts.
7. Judicial Review
There is a general right to have government decisions reviewed by way of what is called "judicial review" under the Judicial Reviews Procedures Act . The standards for judicial review are generally higher than on statutory appeals as the court will defer significantly to the Board - unless it has acted outside of its jurisdiction.
In the CICB context, judicial reviews are best suited to review procedural orders - especially those that have the effect of ending a proceeding. That said, the law of judicial review is quite complex and (once again), at this point you really should get a lawyer.
Otherwise, details of appeal and judicial review procedures are beyond the scope of this legal guide but are addressed generally in the SPPA chapter "Appeals and Judicial Reviews", linked here:
Administrative Law (Ontario)(SPPA): Ch.9: Appeals and Judicial ReviewsCase Note: Sazant v. R.M. and C.I.C.B. (Div Ct, 2010)
This appeal of an interlocutory order was quashed when the court held that only 'final' orders may be subject of statutory appeal under CVCA s.23. However the court also held that, had the case been brought as an application for judicial review, it would also have quashed it as premature in that the appellant (of the interlocutory order) had a statutory appeal of the final order, which had not yet been exercised (not yet being 'ripe'). It is a principle of judicial review that all lower proceedings must be exhausted before an application for judicial review will be considered.
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