Simon's Megalomaniacal Legal Resources

Criminal Injuries Compensation (Ontario)
Legal Guide

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Ch.2 - Questionable Board Practices (April 2006)

NOTE: This chapter, which criticizes CICB practices, was written in April 2006 and has not been updated since then. While many of the specific references and examples in it are out-of-date, the points made are by-and-large still valid (as has been pointed out by the courts on several occasions). Essentially I don't see any point to devoting time to analyzing the changing specifics of what is a chronic situation.

Preface

1. The Problems
   
2. Board Rules
   NOTE
   (a) Overview
   (b) "Gate-Keeping"
   (c) "Controlling Process"
   (d) Rule-Making Authority
   . CVCA Regulation-Making Authority
   . SPPA Rule-Making Authority
   . Implied Exception Principle
   . Benefits-Conferring Legislation Rule
   . Natural Justice
   . Presumption of Oral Hearing
   . Rules Must be Consistent with Statutes [SPPA s.25.1(3)]
   . MTHA v Godwin (Ont CA)
   (e) Remedies
   
3. Fettering Discretion
   (a) Overview
   (b) Examples
   (c) Case Law
   
4. Board Policies and Practices
   (a) Overview
   (b) Legal Status of "Policies and Practices"
   (c) SPPA Public Availability Requirements
   (d) Comment
   (e) Board Forms
   (f) Does the Computer Tail Wag the Legal Dog?
   
5. Board "Personal Information" Practices
   (a) Overview
   (b) Board Information Practices
   . "Authorization for Release of Information" Form
   . Other Board Application Forms
   (c) Legal Authority to Use, Collect and Disclose Personal Information
   . Information v Evidence
   . FIPPA Personal Information "Use" Provisions
   . FIPPA Personal Information Collection Provisions
   . Discussion
   . FIPPA Personal Information Disclosure Provisions
   (d) Collection Notice Requirements
   . FIPPA Provision
   . "Other Board Application Forms"
   . "Authorization for Release of Information"
   (e) Comment
   . Too Much Ado?
   . Enabling the Board's Controlling Role in the CICB
   Process
   . Applicant Perceptions
   . Self-Incrimination Protections Degraded

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Preface

My goal in writing these Legal Guides is to provide useful legal information resources for professionals and laypersons alike. I write them in areas that I both have and have not (as in this case) practiced because I believe that I can combine basic legal sources, general legal principles and the general advocacy experience that I have gained over my career as a lawyer and legal advocate to produce something useful.

When I started out to write this Legal Guide about the Ontario Criminal Injuries Compensation system in March 2006, I envisioned writing a thorough summary of the law and practice of the Compensation for Victims of Crime Act as reflected in statutes, regulations, case law and any Rules of Procedure produced by the Criminal Injuries Compensation Board (CICB).

However what started as a process of review and organization soon took on aspects of a forensic investigation. One after another questions arose as to the legitimacy of many of the Board's Rules, policies, forms and unwritten practices - and frankly as to the accuracy of statements it had made to the public.

The many concerns I have are noted as they arise in the various topical areas of the legal guide. General concerns and my legal analysis explaining them are mostly located in this chapter: "Questionable Board Practices". I have been tempted to use a stronger-sounding title but feel this adequately conveys my concerns without claiming them to be the final word on the subject. Readers should be cautioned that what is discussed in this chapter - and wherever else in the legal guide identified as a "questionable practice" - have, for the most part, not been examined or declared illegal by a court.

That said, I hope that what is presented here will stimulate debate and discussion over the concerns so that the victims of crime in Ontario will be served as the law intends.

* I WILL PUBLISH IN THIS WEBSITE ANY SUBSTANTIVE REBUTTALS OR COMMENTS ON THE VIEWS EXPRESSED HEREIN. *
1. The Problems

In my view the Compensation for Victims of Crime Act meant to establish a "quasi-judicial" (ie. court-like) tribunal system where parties file applications, go to hearings, call witnesses, adduce evidence, make legal submissions - and Board members make rulings. This is the same thing that happens day after day in innumerable administrative tribunals throughout the province and most of the common law world.

Instead, what the Criminal Injuries Compensation Board has become - is a paper-driven and staff-controlled application process which reminds me of nothing so much as the welfare (Ontario Works) application process. The CICB process is one where:

• "gate-keeping" techniques are extensive, unparalled and illegitimate; ("gate-keeping" refers to techniques used by an agency which reduce its caseload by erecting direct or indirect barriers to access to its processes).
  
  
• the Board illegitimately reserves the right to summarily dismiss applications on grounds (I could not find public evidence of how much this actually happens - but the tools are certainly there);
  
  
• tactical and strategic control over the proceedings is taken away from applicants and parties;
  
  
• the Board, ostensibly an independent adjudicator, has in practice taken on an investigatory role with respect to the applicant which places it in a conflict of interest with its adjudicative, judicial role;
  
  
• the law of compensation eligibility is effectively distorted (ie. what constitutes a "crime of violence", the effect of victim contribution to injury);
  
  
• the legally-mandated discretionary decision-making role of adjudicators is heavily and illegitimately "fettered" (ie. regulated).

After that, what little does remain of hearing rights resembles much more a European-style "inquisitorial" process where Board staff take on a primary investigative and procedural role, with traditional party control within the proceedings being significantly curtailed.

I can only speculate about the motives - good or bad - for this grand transformation, but in my view it is obvious that it has happened to an extent that is not legally justified.

While it is laudable to try to help victims of crime navigate unfamiliar legal proceedings and to try to avoid unnecessary and traumatic confrontation between victim and alleged offender ("good" motives) - this should not be done at the cost of the true intent of the legislation, the parties right to control the presentation of their own case, the right of offenders to participate in the proceedings, and the right to cross-examine witnesses. Help - but do not impede - the proper operation of law and natural justice.

Of "bad" motives - if they exist - I cannot confidentally speak since they would exist only in the minds of those who "make the rules", and would not likely be rendered plainly into publically-available text.


2. Board Rules

Note: The discussion in this section requires an understanding of several specific Board Rules (and their relationship with related SPPA provisions)discussed in detail in the chapters: "Applications", "Hearings" and "Pre-Hearing Proceedings").

(a) Overview

In my analysis, there are some major legal flaws in the Board's "Rules of Procedure" - most of which revolve around the issue of "gate-keeping" and "controlling process".

(b) "Gate-Keeping"

"Gate-keeping" refers to techniques used by an agency which reduce its caseload by erecting direct or indirect barriers to access to its processes. With the CICB it can occur at any of the stages of the process: the application request, application and summary dismissal.

I have found it difficult - on published information - to accurately gauge the extent to which "gate-keeping" actually impacts those seeking compensation through the CVCA system. The Board has claimed that it "receives more than 8,000 requests for claim packages each year" ["Fact Sheet: Important Information for Applicants" (June 2005)]. The 2002/3 Annual Report notes 4,976 applications filed (with 1,026 of these "returned" for extension requests), and 2,231 hearings held (this includes both oral and "written" hearings). Of course - these numbers are for different years and in the case of 'hearings held' will not accurately reflect the performance of the Board due to the natural time-delay from filing to hearing. However - unless there had been a drastic change in the demand for compensation - there appears roughly to be an attrition rate of over 70% between the stage of requesting an application to actual legal resolution by hearing.

The specific "gate-keeping" techniques which I view as illegitimate include:

• Rule 1.7: which purports to allow the Board to administratively refuse to issue and/or accept applications (see the chapter "Applications");
  
  
• Rule 1.8: which purports to provide for summary dismissal of a proceeding for "lack of evidence" (see the chapter "Pre-Hearing Proceedings")

It is the nature of these problems that leads me to identify their common problem as "gate-keeping", as they are all directed at reducing caseload by barring or dismissing applications.

Case Note: Ahmed v CICB (Div Ct, 2008):
A blatant example of gate-keeping abuse is found in the case of Ahmed v Ontario (CICB) (Div Ct, 2008). In this case the court allowed a judicial review application seeking mandamus (a mandatory order against government) against the CICB after it refused to issue an applicant the forms necessary to initiate an application. As the basis for its refusal, the CICB stated that: "(i)n the absence of charges, it is assumed that the [alleged assailant police] officers were acting in accordance with the commission of their duties." The court held that this position clearly contravened s.16(1) of the CVCA, which specifically provided that prosecution and/or conviction of a criminal offence was not a prerequisite to an application being granted, and further that the SPPA s.25.1-made rules, which in some cases allowed the refusal of application forms, did not extend to pre-judging the evidence.

That we have administrative tribunals in Ontario being administered by people so oblivious to the rudiments of a legal regime that they would act as the CICB did in Ahmed, should be of profound concern to us all. This degree of arrogance is of 'magna carta' magnitude.

(c) "Controlling Process"

"Controlling process" refers to techniques which reduce or eliminate traditional party-control over their participation in the process. These include: withholding scheduling until the Board is satisfied with the evidentiary record - which it primarily controls, an excessive (and in my view illegal use) of "written hearings" (ie. all evidence and submissions in writing) in lieu of oral hearings, denial of the right of cross-examination, and illegitimate exclusion of alleged "offender" participation in the process.

The techniques are applied both leading up to and at the "hearing" stage of a proceeding. While much "controlling process" occurs through Rules of Procedure which govern the hearing process, it is also embodied in sundry "policies" and practices which appear scattered throughout Board "information" documentation, notices and forms - in particular the Board's assertion of an investigative role in collecting evidence regarding the applicant. These aspects are discussed in this chapter in their own sections, below.

The quantitative effect of "controlling process" is similarly difficult to state - however it can be described. In all cases, the Board claims the right to withhold scheduling a case for hearing until it is satisfied with the evidentiary record. The Board - as a policy - does not serve Notice of Hearings on convicted offenders, thus excluding them completely from participation in the proceedings. In the reporting period 2002/3 [form the Annual Report], 39% of all hearings where "written", precluding the parties from the right to compel witnesses, from cross-examining witnesses and from constitutional self-incrimination rights. Of the 61% hearings that were "oral" this includes an undetermined (the Annual Reports are silent on this) number that were "electronic" (or at least partially electronic) (ie. telephone or television participation).

The primary Board Rules which control hearing process are Rules 7.1 and 7.2: the Board's adoption of written and electronic hearing procedures (respectively). These Rules lack authority for not only the form in which they are implemented - but more profoundly may lack authority for any implementation at all in the CVCA context at all (see the chapter "Hearings").

(d) Rule-Making Authority

. CVCA Regulation-Making Authority

Most readers will known that "statutes" (aka "Acts") - passed by the Ontario legislature - often contain within them "regulation authority" which will delegate the making of subordinate related law to the "Lieutenant-Governor in Council" [effectively, the executive government (cabinet) of the day].

The CVCA provides regulation rule-making authority:

s.28
The Lieutenant Governor in Council may make regulations,

(a) prescribing rules of practice and procedure in respect of applications to the Board and proceedings of the Board;

To date however, cabinet has not used this power and no regulations have been passed under the CVCA. The Board however has moved to fill this void.

. SPPA Rule-Making Authority

The CVCA is governed by the Statutory Powers Procedures Act (SPPA) which is a general procedural code for most administrative tribunals in Ontario. (see the SPPA legal guide:

Statutory Powers Procedures Act Legal Guide
The SPPA contains general rules which apply to all tribunals which it governs, specific (ie. defined) rule-MAKING authorities which tribunals (like the Board) can elect to make, and "general" undefined rule-MAKING authorities [s.25.1]. Section 25.1(1) reads:

A tribunal may make rules governing the practice and procedure before it.

The specific rule-making authorities are explained in detail in the various chapters dealing with the specific Board Rules ("Applications", "Hearings" and "Pre-Hearing Proceedings").

In my view the Board's Rules both misapply and over-reach the rule-making authority granted to it in the SPPA. Below in are six legal points which I present in refutation of any Board authority to make the impugned Rules.

. Implied Exception Principle

I argue in the chapters "Applications" and "Pre-Hearing Proceedings" that there are serious jurisdictional flaws with Rules 1.7 (refusal to issue, accept and process applications) and 1.8 (summary dismissal for lack of evidence) [readers should review these discussions as background]. I argue that the parent provisions for the Rules set out in SPPA s.4.5 and 4.6 do not authorize rule-making as has been done. In some cases the lack of authority is categorical (ie. there is a simple lack of authority) and in others the manner in which the Rules has been made is in conflict with limitations setting out the rule-mkaing authority.

Most poignantly, there is - categorically - no authority for the Board to make rules which allow it to "refuse to issue or accept" applications. Further, to the extent that there is authority to make rules "refusing to process" applications and to "summarily dismiss" proceedings, the manner and grounds upon which the Rules purport to do it are illegal.

Relevant to this issue is a well-established rule of statutory interpretation: "generalia specialibus non derogant", or the "implied exception" principle.

Professor Sullivan (Driedger on the Construction of Statutes 3rd ed, Butterworth's, 1994, p.186) states this principle as follows:

Where two provisions are in conflict and one of them deals specifically with the matter in question while the other is of general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the general; it does not matter which was enacted first.

So when the SPPA sets out specific rule-making authorities - as for example s.4.5 (refusal to process applications) and s.4.6 (summary dismissal for cause) it is these specific provisions - with their attendent conditions and limitations - which govern the rule-making authority of a tribunal. In these cases the general rule-making authority of s.25.1(1) is superceded and no rules may be made which are inconsistent with the specific rule-making authority granted.

The alternative invites a tribunal to disregard specific statutory provisions and to engage in uncontrolled forays into legislative rule-making - a result quite at odds with its relative status in a democratic society.

Further, allowing s.25.1 to supercede more specific rule-making authority defeats the purpose of the more specific provisions - a result offensive to other basic principles of statutory interpretation: Driedger, p.88.

. Benefits-Conferring Legislation Rule

One can argue that the SPPA is ambiguous with respect to the range of the s.25.1 general powers - and therefore it is arguable that the range is unconstrained.

However, it is a principle of statutory interpretation that any ambiguity in benefits-conferring legislation should be resolved in favour of the rights-claimant: Rizzo v Rizzo Shoes [1998] 1 SCR 27.

Recall that Rule 1.7 [refusal to issue, accept or process applications] - when operative - abolishes the right of the rights-claimant to the procedural means necessary to argue for the substantive compensation rights that they are claiming under the CVCA. This is no mere 'prejudicing' of a claimant's rights but a complete abrogation of them.

The Rizzo doctrine dictates that the ambiguity is resolved by selecting the option that most favours the rights-claimant - which turns against the gate-keeping provisions. This result renders R1.7 ultra vires (beyond the jurisdiction of) the statutory authority of the Board to make procedural rules.

. Natural Justice

Rules of "natural justice" are mentioned throughout this legal guide and are the legal and historical basis of the SPPA. They require that any public decision which has a significant impact on a citizen be conducted in accordance with well-recognized - and largely common-sense - principles of procedural fairness, particularly the right to a hearing.

Administrative "gate-keeping" at the application and hearing process, and the delegation of summary dismissal authority to the administrative level are blatant derogations from traditional common law natural justice entitlements.

The right to claim entitlements established under law is a procedural right of "Magna Carta" proportions. Both under the SPPA and under common law principles of "natural justice", when a decision is made regarding a substantial statutory right, then the rights-claimant is plainly entitled to a hearing of the issue. Any summary dismissal motion in civil court invokes the right to a hearing.

The impugned Board Rules remove even the rudiments of a hearing process and as such violate the main statutory requirements of the SPPA and the common law principles of natural justice. Natural justice is a right that the courts will move to protect, inserting natural justice requirements where required to preserve fairness in public decision-making: Hepplewhite v CICB (Ontario) OJ #963 (QL) (Div Ct, 1972) (as discussed in the chapter "Evidence").

. Presumption of Oral Hearing

In the case of Darling v CICB (Ontario) 11 OR (2d) 766 (Ont Div Ct, 1976) the Divisional Court considered the procedure for an applicant to request an extension of time for late-filing an application. The applicant had received a written administrative refusal by the Board to extend time.

In deciding the appropriateness of the Board's treatment of the request, the Divisional Court referred to another section (which survives in the present CVCA in essentially the same wording) of the CVCA dealing with public access to Board proceedings. This provisions reads:

s.12
All hearings shall be held in public except where, in the opinion of the Board, it is necessary to hold the hearing in camera for the reason that a public hearing ...

On the clear implication contained in this (still-enacted) provision the Court held that any issue of extending time must be dealt with in a viva voce (ie. oral) hearing and not administratively:

In our view that necessarily implies that the hearing shall be a viva voce hearing.

An argument (but only an argument) now exists that the enactment of SPPA 5.1(1,2.1), which authorizes the Board to make rules mandating electronic hearings for procedural matters, overrides the specific facts of Darling. However the principle established in that case: the presumption of an oral hearing, still stands for all CICB adjudications. The interpretation established in Darling extends to the main compensation hearing, which is the primary adjudication venue of the CVCA. Darling creates a presumption that - unless otherwise legitimately exempted - the normal hearing procedure under the CVCA is to be by way of vive voce oral hearing.

. Rules Must be Consistent with Statutes [SPPA s.25.1(3)]

Can Board Rules override other statutory provisions?

Even though the SPPA overrides other statutes (unless expressly exempted) by virtue of s.32 SPPA, the SPPA itself at s.25.1(3) requires:

s.25.1(3) The rules shall be consistent with this Act and with other Acts to which they relate.

To the extent that rights are grounded in statutes - such as the Darling oral hearing right (above) is grounded in provisions of the Compensation for Victims of Crime Act - any Board Rules made under s.25.1 SPPA which derogate from such rights are ineffectual in law.

Similarly, Rules 1.7 [refusal to issue, accept or process applications] and 1.8 [summary dismissal for cause] are not "consistent" with SPPA s.4.5 and 4.6, respectively. Together they extend tribunal powers beyind those set out in the SPPA and confuse the grounds on which (even legitimate) such powers may be grounded. Similarly Rule 7.1 [written hearings] lack required notice and submission rights required of SPPA s.5.1.

. MTHA v Godwin (Ont CA)

Probably the most detailed review by the courts of the range of the general s.25.1 SPPA rule-making authority to date has been in the case of Godwin v MTHA (Ont CA, 2002). This issue is discussed at more length in the SPPA legal guide in the chapter "Tribunals and their Rule-Making Authority" .

While Godwin stands for the proposition that the s.25.1 authority is to be interpreted in favour of giving tribunals some latitude over procedural issues, its use in Godwin was far less adventuresome than the problematic Rules discussed in this chapter.

For one thing, the "rule-making" at issue in Godwin was whether the tribunal could make an procedural ORDER within a specific case - under a general procedural rule made by a tribunal (there the Rental Housing Tribunal). No specific free-standing rules such as R1.7, 1.8, 7.1 and 7.2 were impugned in that case.

Further, in Godwin the issue (whether "representative evidence" of a few parties - out of many - could be accepted by the tribunal in a representative proceeding) was one on which the SPPA was (and is) silent. That is not so with above-listed Rules where specific SPPA provisions are established on terms which regulate and condition tribunal rule-making authority on the specific subject-matter of those Rules.

The Godwin case is no authority for the proposition that s.25.1 of the SPPA provides tribunal's with the range of rule-making authority with the CICB has relief on it for.

(e) Remedies

Parties suffering prejudice resultant from these problems should argue these points when confronted with them in any channels still open to them - including at CICB hearings and in any statutory reviews within the CICB.

However, given the extent to which the CICB culture has embraced these purported authorities the case for resolving these issues outside of court is marginal. Where CICB-level channels are barred (as in refusal to issue or accept an application) or exhausted, then recourse must be had to the Divisional Court, either by way of appeal or judicial review. At this point unrepresented parties should consult counsel promptly (also see the chapter "Reviews and Appeals").


3. Fettering Discretion

(a) Overview

A primary way in which the legislature delegates decision-making authority to subordinate bodies such as administrators and adjudicators ("delegatees") (as it must to accomodate the multitude of fact-situations that can arise in such activties) is to give them "discretion". Typically such delegation is done by giving some guidance as to factors that the "delegatee" should or must consider when deciding the case. Even when no guidance is given the courts will control the arbitrary and abusive use of discretion.

"Fettering" is when the delegatee establishes policies which narrow or restrict their discretionary authority. A typical example would be to establish several "categories" of fact situations into which cases are slotted, and to establish fixed treatments for all cases within each category.

In the text: Principles of Administrative Law (2nd ed)(Carswell, 1994), the authors Jones and de Villars state:

Because administrative law generally requires a statutory power to be exercised by the very person upon whom it has been conferred, there must necessarily be some limit on the extent to which the exercise of a discretionary power can be fettered by the adoption of an inflexible policy, by contract, or by other means. After all, the existence of discretion implies the absence of a rule dictating the result in each case; the essence of discretion is that it can be exercised differently in different cases. Each case must be looked at individually, on its own merits. Anything, therefore, which requires a delegate to exercise his or her discretion in a particular way may illegally limit the ambit of his or her power. A delegate who thus fetters his discretion commits a jurisdictional error which is capable of judicial review.

On the other hand, it would be incorrect to assert that a delegate cannot adopt a general policy. Any administrator faced with a large volume of discretionary decisions is practically bound to adopt rough rules of thumb. This practice is acceptable, provided each case is individually considered on its merits.

This quote reflects the tension at the heart of the concept of "fettering" discretion: policies are ok, but they cannot be inflexible policies.

In the case of the CICB, discretion is granted - in a number of areas - to: "the Board". Unfortunately, the Act does not distinguish the reality that there are two "Boards" fulfilling the two roles assigned in the quote above. There is the policy-making "administrative Board" with the chair at the head, and there is the discretion-exercising "presiding Board" sitting as a panel in the specific hearing (see the chapter "The Board").

Of course it is the "presiding Board" which actually exercises the delegated discretion and which bears the burden of determining what factors are relevant to this taks and whether "policies" should be excepted in the facts of the case before it. Clearly from the Jones and de Villars quote above, any stifling of the exercise of discretion in favour of adherence to a strict policy is subject to judicial review for "fettering".

As I have noted elsewhere, I do not have significant direct experience with the CICB to comment on the dynamics between "administrative Board" and the many "presiding Boards" (ie. the Board members) but it is a human reality in other tribunals and will most certainly be so within the CICB. The hierarchical organization of our society - particularly the model of the employer/employee relationship - is poor training for the individual Board member to assert their independence against the direction of a perceived superior.

(b) Examples

Throughout this legal guide there are critical references to where the proper exercise of discretion is "fettered". Examples range from the Annual Reports (2001/2 and 2002/3) which claim the function of the CVCA regime to be "providing compensation to INNOCENT [emphasis added] victims of crimes of violence" to "... the Board does not send out notices of the hearing to convicted offenders" ["Fact Sheet: Applicant Information for Oral Hearing" (May 2005)]. Both of these "policies" impose inflexibility where the statute grants discretion.

(c) Case Law

Note: an historically important case on this issue: Sheehan v CICB (Ontario), is discussed under the topic "Discretionary Range of the Board" in the chapter "The Board".

Courts have corrected the CICB several times for excessive inflexibility ("fettering") in its policies (these cases are repeated in the chapter "Compensation").

In Leung v CICB (Ontario) 24 OR (3d) 530 (Div Ct, 1995) the court reviewed a BOARD monetary cap (NOT a statutory cap) for loss of wages awards. While the Court upheld the result on the facts it criticized the policy as fettering the discretion granted the Board. While policy guidelines are necessary and useful in some circumstances they must not be elevated to the level of a law. While the stated purpose of the guideline here was to treat all applicants equally, the Court criticized that purpose as encouraging an "arbitrary and even capricious" treatment of victims.

Of similar impact was the case of Myers v CICB (Ontario) OJ #3986 (QL) (Div Ct, 1999). In Myers the Court ordered a new hearing where the Board - in setting the quantum of an award - considered the total number of applications before the Board (ie. its entire caseload) and its budgetary limitations:

... in my view, it is an error in law for the Board to calculate or adjust up or down an award depending upon the number of claims filed and the amount of a "budget". The quantum under s. 7(1) of the Act is to be calculated without reference to any "budget", real or imaginary.

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 ...

In Dekany v. Criminal Injuries Compensation Board (Div Ct, 2011) the Board's practice of using policy to fetter the discretion of it's members when make compensation awards was the ground of a successful appeal in this case:

[11] We appreciate the fact that the reasons of a lay Board are not to be subjected to the same scrutiny as those of one made up of lawyers. Having said that, the above passage raises the concern that the Board policy was to restrict loss of income claims to applicants who were either actively employed at the time of the injuries sustained, or who had confirmed offers, and that it may have applied such a policy in this case, thus failing to consider the possibility that applicants who are regularly but casually employed may be able to present evidence of past earnings that could establish that future earnings could be anticipated but had been affected because of the effects of the injuries. A policy that, in effect, ends the inquiry into the loss of income issue after determining that there was neither active employment nor a firm offer at the time of the injury suffered would fetter the discretion of the Board: Sheehan v. Ontario (Criminal Injuries Compensation Board) 1974 CanLII 439 (ON CA), 1974 CarswellOnt 552 (C.A.) at paras. 13 and 14.

[12] Accordingly, and despite our view that the Board’s decision, subject to this concern, is detailed and well-written, we would remit the matter to the Board so that it can address the question of whether the appellant might have established some loss of income claim despite the absence of a confirmed written contract.

4. Board Policies and Practices

(a) Overview

Given the already scattered state of the procedural law which governs the Board (ie. the CVCA, SPPA general rules, SPPA specific rule-making authority, SPPA general s.25.1 rule-making authority, the Board Rules and the common law) it would be merciful if consolidation of rules were the trend rather than further atomization. But that is not to be.

Scattered throughout various Board "Fact Sheets" (see the website), information sheets (generally sent to parties at various applicable stages of a proceeding), within Board-drafted Forms, and sometimes reflected even in peripheral documents such as the Annual Reports - are sundry statements of policy and practice (not always consistent).

Examples are cited throughout the legal guide as they arise in various topical areas and deal (not always consistently) with topics as wide as: the (mandatory)assignment of hearing type (oral or written), not proceeding to hearing until any criminal trials are concluded, not scheduling a case for hearing until the Board's evidence inquiries are satisfied, and much more.

To add to the confusion, sometimes "practice" is not written down anywhere butsimply becomes apparent almost as a "cultural" trait of the Board.

(b) Legal Status of "Policies and Practices"

A challenging - although unnecessarily troublesome - question arises as to the legal status of such "policies" and "practices".

The Board Rules of Procedure - already the subject of much critical commentary above - includes the following:

Rule 1.3:
These rules are to be read in conjunction with the CICB's policies and guidelines.

I have both searched (and inquired of the Board) as to the full range of theirwritten Rules and - excepting the documents already mentioned above - (none ofwhich are labelled "policies" or "guidelines") have found no more. I think it is therefore reasonable to assume that "that's all there is".

This chapter should have made clear to this point that law includes: statutes, regulations (these are clear) - and Rules - if made within legal jurisdiction [see the section on "Board Rules" above]. It should also have made clear (see the section on "Fettering Discretion" above), that "policies" (as the term is normally used) are NOT law - they are guidelines which cannot be inflexibly applied.

But what - in law - are these things? Can the Board just impose new legally-binding rules by fiat by issuing some new "Fact Sheets" for public distribution?

(c) SPPA Public Availability Requirements

Unlike the making of statutes and regulations which by law and hundreds of years of parliamentary tradition require publication and some pomp and ceremony, the making of legal "Rules" under the Statutory Powers Procedures Act (SPPA) requires next to no formality outside of the internal ratification processes of the Board.

Thankfully though they do require some:

s.27 SPPA
A tribunal shall make any rules or guidelines established under this or any other Act available for examination by the public.

s.25.1(4)
The tribunal shall make the rules available to the public in English and in French.

Copies of SOME of the documents mentioned above (particularly "Fact Sheets") are available on the tribunal website , and it is scattered throughout these that some of these "policies" may be found. Other documents - particularly information sheets and forms - are only distributed to parties when required in the course of the proceeeding.

Nowhere are they discretely consolidated like the Board's Rules of Procedure nor labelled as "policies" or "guidelines" to provide easily available clarity of intent.

Whether this degree of "availability" satisfies the law quoted above, and thus bolsters the argument that they are "law" - remains uncertain.

(d) Comment

Ultimately however the legality of any policy or guideline must be measured by whether it is made within the Board's jurisdiction under SPPA rule-making authority.

Further, it they are valid "Board Rules" as per Rule 1.3 then they have risen above the status normally assigned to the term "policy" (recall the discussion of "fettering" above) and are now "laws". However this creates a larger problem for their legitimacy as whenever they formerly "fettered discretion", they now override statutes - which they expressly CANNOT do:

s.25.1(3) SPPA
The Rules shall be consistent with this Act and with the other Acts to which they relate.

In short - the Board's "policies" and "guidelines" - scattered as they are in both physical form and legal pedigree - are quite simply a mess. No party or practitioner should have to face this degree of uncertainty, confusion and arbitrariness when attempting to ascertain the rules which govern their participation in any legal proceeding. Judicial comments made in the case of Batic v CICB (Ontario) 1 OAC 68 (Div Ct, 1983) on the need for tribunals to issue clear and thorough reasons for decision apply - with greater strength - to this sad situation:

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.

(e) Board Forms

The CVCA states:

s.28
The Lieutenant Governor in Council may make regulations,

(c) prescribing forms for the purposes of this Act and providing for their use;

As noted above, no regulations have been made under the CVCA so this authority has not been used. Once again the Board has moved to fill this void and provides forms to applicants who make it past the preliminary gate-keeping stages (see the chapter "Applications").

The legality of the forms in terms of their information demands are discussed critically and extensively in the section "Board Personal Information Practices", below. With respect to the various policy statements and practices which they embody the forms face the same legitimacy problems as other "policy" or "guideline" documents, discussed above.

(f) Is the Computer Tail Wagging the Legal Dog?

It can and does happen that the computer systems of administrative tribunals dictate the practice and sometimes even the law of an adminstrative regime. The problem occurs when the categories that the software operates in do not correspond accurately to the categories of the law. The administration of Ontario Works and Ontario Disability Support Program has suffered significantly from this problem.

I am not familiar with the Board's computer system and whether such a problem may exist there - only its authors and users will be - but the Board's "Fact Sheet: What is the Application Process" (01 Feb 2006) suggests that its information requirements can impede or delay processing of an application:

2. Your information is entered into the Board's computer system. If there are corrections that need to be made or if further information is required, the forms will be returned to you with a letter explaining what you need to do.

I would be interested to hear from anyone having direct knowledge of the Board's computer system in this regard.

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