Simon's Megalomaniacal Legal Resources

Criminal Injuries Compensation (Ontario)
Legal Guide

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Ch.4 - Parties and Participants (01 January 2015)

1. Overview
   
2. Applicants
   (a) On Injury to Victim
   (b) On Death of Victim
   (c) Victims
   . Overview
   . Direct Victims
   . Indirect Victims
   . "Victim Good Samaritans"
   . Witness Victims
   (d) Support-Providers
   . Overview
   . For Children
   . For Spouses and Ex-Spouses
   . For Parents
   . Trusts and Trustees
   . Other Fiduciaries
   (e) Dependents
   . Overview
   . Children
   . "Spouses"
   (f) After-the-Crime "Good Samaritans"
   (g) Deceased Victims
   
3. Who Are the Parties?
   
4. Offender or Alleged Offender as Party
   
5. Rights of Parties
   
6. "Participants"
   
7. Legal Representation
   (a) Overview
   (b) "Participants"
   (c) Agents
   
8. Applications by Representatives on Behalf of Victims
   
9. Unidentified Offenders
   
10. Offenders Under 12 Years of Age

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1. Overview

Traditionally in civil and administrative proceedings, "parties" to a proceeding are those entitled to full participation on an equal basis with other, similar parties (ie. receipt of documents, adducing of evidence, cross-examination of other party witnesses, making of legal submissions, etc).

The Compensation for Victims of Crimes Act (CVCA) codifies rules for who - and isn't - a party and gives the Board significant discretion to admit new parties. As well, the CVCA establishes a new class of "participants" who have reduced party-like rights.

The Board's proceedings and discretionary decisions regarding party and participant status are governed on review or appeal by principles of "natural justice". These are broad judge-made principles of that require fairness in decision-making within lower tribunals like the Board. In some cases this authority might be exercised to review a Board's decision to add or deny party or participant status on the basis of the nature and degree of their legal interest in the case.


2. Applicants

(a) On Injury to Victim

On INJURY to the victim, the Board may issue a compensation order to [CVCA s.5]:

• "Victims";
  
  
• 'Support-providers' [author's term] ("a person responsible for the support of the victim")

(b) On Death of Victim

On DEATH OF the victim, the Board may issue a compensation order to [CVCA s.5]:

• "Victims";
  
  
• 'Support-providers' [author's term] ("a person responsible for the support of the victim").
  
  
• "Dependents" of the victim;
  
  
• "After-the-Crime Good Samaritans": a person who has, while not being under a legal duty to do so, incurred on behalf of the victim or the victim's estate any expense listed under s.7(1)(a-e) of the Act. (these expenses are discussed under the topic "Types of Compensation" in the chapter "Compensation", and may also be compensated for dependents and support-providers).
  
  Distinguish these from "Victim Good Samaritans", discussed below.

(c) Victims

. Overview

The main definition of constitutes a "victim" is [CVCA s.5]:

... any person ... injured or killed by any act or omission in Ontario of any other person occurring in or resulting from the commission of a crime of violence ...

. Direct Victims

Most victims of course will be those directly injured or killed by a "crime of violence" such as the person assaulted, shot, etc.

. Indirect Victims

Victims may also include those indirectly injured as a result of a crime of violence. In Spade v CICB (Ontario) 73 OR (2d) 385 (Div Ct, 1990) an applicant was the applicant was injured in the course of a fight between two men when she tried to break it up. The case was initially dismissed at the Board on the basis that the fight was consensual and as such not a crime, and that the injuries were "accidental" and not criminally intended. However the law on consent changed and the Divisional Court allowed the applicant's appeal as her injuries 'occured in or resulted from ... the commission of a crime of violence' [s.5 CVCA].

. "Victim Good Samaritans"

Other specific situations in which compensable injury may occur are expressly listed in CVCA s.5:

• the lawful arrest or attempted arrest of an offender or suspected offender for an offence against someone other than the applicant, their dependents, or their property;
  
  
• assisting a peace officer (as defined in the Criminal Code [CVCA s.1]) in the execution of their law enforcement duties;
  
  
• preventing or attempting to prevent the commission of an offence or suspected offence against someone other than the applicant, their dependents, or their property.

These "Victim Good Samaritans" include peace officers and civilians, these provisions are discussed are more length under the topic "Crime or Law Enforcement Causation" in the chapter "Compensation". Distinguish them from "After-the-Crime Good Samaritans" who voluntarily help with expenses, discussed below.

. Witness Victims

Victims may also be persons who have witnessed a crime of violence (eg. murder) and suffered "mental shock" from the experience. "Mental or nervous shock" is a specific category of injury (see the chapter "Compensable Injuries").

(d) Support-Providers

. Overview

'Support-providers' (author's term) are those "responsible for the support of the victim" at the time of injury or death. The logic of course is that such people will face death-related expenses or additional expenses in future caring for the injured victim. This is a broad definition which has not yet (to my knowledge) been explored by the courts.

This section discusses the legal standing of such support-providers and entities to make compensation claims themselves for their past and future expenses associated with the injury to or death of the victim. However keep in mind that such persons and entities may, in addition to their right to make personal claims, also end up:

• making "representative claims" for victims (see "Applications by Representatives on Behalf of Victims", below), and
  
  
• receiving compensation awards ordered for victims directly, in their capacity as trustees or 'money-managers' for the victim (see the discussion of this under "Awards to Vulnerable Persons" in the chapter "Compensation").

"Support-providers" are personally eligible for all types of compensation under s.7(1), EXCEPT s.7(1)(f) (see the topic "Types of Compensation" in the chapter "Compensation").

. For Children

In the case of children 'support-providers' obviously include custodial parents and guardians, and those under a duty to provide child support.

. For Spouses and Ex-Spouses

For adults (or spousal "children" - eg. married but under 18 years old) 'support-providers' can also include those under a duty to provide spousal support to former or present spouses.

. For Parents

While uncommon, the Family Law Act (FLA) provides for "parental support" orders against adult children for the support of their parents:

s.32
Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.

. Trusts and Trustees

Trusts funds for individuals can be established under wills ("testamentary trusts") or where the donor is still alive ("inter vivos"). In any event a trust fund will have one or more "trustees" charged with managing and dispensing the money for the benefit of the "beneficiary". Any legal proceedings involving the trust are conducted in the name of - and by - the trustee/s.

It may be in law that such a trust is "a person responsible for the support of the victim" [CVCA s.5], although recent amendments brought about by the Legislation Act, 2006 have eliminated any trust-type entities from inclusion in the definition of "person" under Ontario law, such that the term now only includes natural persons and corporations [L/A s.87].

Such a trust has an arguable case to make a compensation claim through its trustee/s as a 'support-provider', although I am unaware of any cases where this has been done to date.

In making a compensation order the Board "shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance." [CVCA s.17(3)]. An interesting legal issue might arise in such a case as the Board would likely view the trust as a such a "collateral benefit" source, arguing that its existence reduces the need (and thus the amount of award to) the victim. See the discussion of "collateral benefits" in the chapter "Compensation".

. Other Fiduciaries

Person found to be mentally incapable of managing their own affairs sometimes have - or are assigned - "fiduciaries" such as "committees", "attorneys" (this does not mean lawyers) under powers of attorney, statutory or court-appointed "guardians of property" under the Substitute Decisions Act, the Public Guardian and Trusteee, and others for this purpose.

These people and entities, like trustees (discussed above) have legal responsibilities to manage the affairs of the victim. However while trustees usually have large 'capital' trust funds to draw upon, other representatives typically just manage monthly income streams such as Ontario Disability Support Program (ODSP), Canada Pension Plan (Disabled) (CPP-D), Ontario Works (welfare), insurance payments, etc.

In any event, these "other fiduciaries" may also satisfy the definition: "a person responsible for the support of the victim" [CVCA s.5] and as such may make a claim in their own right for their expenses and effort associated with their duties towards the victim.

Claims by such persons for monies 'gifted' to the victim (ie. money out of the fiduciary's own pocket) may be less compelling - as their "responsibility" normally extends only to managing the income of the victim - not to providing it. It may be that such "donating" where there is no legal duty to do so is only covered by the "After-the-crime Good Samaritan" provisions in relation to death claims (see below).

(e) Dependents

. Overview

"Dependents" claims are only available on the death of the victim. "Dependents" are eligible for all types of compensation under s.7(1), except s.7(1)(f) (see the topic "Types of Compensation" in the chapter "Compensation").

"Dependants" of the victim include the following BUT ONLY IF they were "in whole or in part dependent on the victim for support at the time of his or her death" [CVCA s.1] (the discussion above re 'Support-providers' discusses what might constitute "support"):

• spouses,
  
  
• parents,
  
  
• "common-law" parents (persons who have demonstrated a settled intention to treat the victim as a child of his or her family)
  
  
• grandparents,
  
  
• children,
  
  
• grandchildren;
  
  
• brothers and sisters;
  
  
• "any other relatives"

Note: "Parents" DO NOT include paid foster parents of victims.

. Children

"Children" includes:

• those born within or outside of marriage;
  
  
• adopted children;
  
  
• grandchildren;
  
  
• common-law children ("whom the victim has demonstrated a settled intention to treat as a child of his or her family")
  
  
• children conceived before and born after the victim's death.

"Children" DO NOT include foster children placed with victims who are paid foster parents.

. "Spouses"

"Spouses" includes those:

• to who the victim was married,
  
  
• to who the victim was in a common law relationship, and
  
  
• those from whom the victim was divorced (or marriage nullified) where the victim was providing, or was under an obligation to provide, support.

"Spouses" includes same-sex spouses.

(f) After-the-Crime "Good Samaritans"

"After-the-Crime Good Samaritan" (author's term) compensation claims are only available on the death of the victim.

An "After-the-Crime Good Samaritan" is anyone who - not being under a legal responsibility to do so - has an incurred, on behalf of the victim or the victim's estate in relation to the death, expenses listed under s.7(1)(a-e) of the CVCA [CVCA s.5(f)] (see "Types of Compensation" in the chapter "Compensation"). They are NOT eligible for s.7(1)(f) compensation (see the topic "Types of Compensation" in the chapter "Compensation")

These Good Samaritans may claim for these expenses, which are discussed under the topic "Type of Compensation" in the chapter "Compensation" (dependents and support-providers may also claim these expenses).

Distinguish these from "Victim Good Samaritans" (discussed above and under the topic "Crime and Law Enforcement Causation" in the chapter "Causation") who are injured or killed in the course of trying to prevent a crime, help a peace officer or arrest a criminal.

(g) Deceased Victims

In the case of Nussbacker v CICB (Div Ct, 2006) it was held that a CVCA claim did not survive the death of the victim, despite Trustee Act provisions which allowed the victim's estate in civil personal injury cases to continue such proceedings:

[3] The Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, does not alter the common law principle that a right to compensation for injuries suffered by a person terminates with the death of the person. While s.38(1) of the Trustee Act, R.S.O. 1990, c. T.23, modified the common law principle that a personal action dies with the person, that section does not apply in the circumstances of this case. “Action” in s.38(1) refers to civil proceedings between a plaintiff and defendant (see Royal Canadian Legion Norwood (Alberta) Branch 178 v. Edmonton (City) (1994), 1994 ABCA 37 (CanLII), 16 Alta. L.R. (3d) 305 (C.A.) at paragraph 27). Section 38(1) does not refer to proceedings before an administrative tribunal to obtain compensation from a public fund.

3. Who Are the Parties?

The legal definition of who is a "party" under the CVCA reverses the normal legal logic of the term, which first assigns party-status by the type and degree of legal interest a person has in the proceedings - and then serves 'notices of hearings' on those "parties".

Under the CVCA, "parties" are those "upon whom a notice of hearing is served" [CVCA s.9(2)], which includes [CVCA s.9(1)]:

• the applicant/s (see the section "Applicants", above);
  
  
• the Minister,
  
  
• the offender (if "practicable" to serve them), and
  
  
• "any other person who appears to the Board to have an interest in the application."

The Board may later add additional parties [CVCA s.9(2)].

The CICB Rules largely re-affirm the CVCA provisions cited above [R3.1]. Parties may include:

• those made parties under the CVCA,
  
  
• persons "otherwise entitled by law to be parties" or who in the Board's opinion should be made parties, (this provision alludes to the application of "natural justice" to add or deny party status.)

Parties - including victims - need not be Ontario residents, although the crime alleged must have occured in Ontario: CVCA s.5.

According to the Rules, "(a) person is not a party to the proceeding before the Board until named as a party by the Board" [R3.1(2)]. Care must be taken in accepting this Rule uncritically (as with all the Board's Rules - see this discussion in the chapter "Questionable Board Practices"). As the CVCA lists parties as cited above, R3.1(2) seems an odd power to grant the Board - although it does makes sense if it's application is limited to cases where the Board may exercise its discretionary power to name parties.

In any event, the "power" to name parties (presumably the discretionary power) may consider the following factors (the wording suggests that these factors are not exhaustive) [R3.1(3)]:

• whether the person's interests may be directly and substantially affected by the hearing or its result;
  
  
• whether the person has a genuine interest in the subject matter of the proceeding; or
  
  
• whether a person is likely to make a useful and distinct contribution to the Board's understanding of the issues in the proceeding.

These factors are largely an embodiment of the factors that a judge would consider when deciding party status under common law principles of natural justice.

A "party" wishing to obtain a Board decision on party status may make a motion to the Board for that purpose [R5.1] (see the chapter "Motions"). There is no express similar right to make a motion regarding "participant" status ("participants" are discussed below) and - while the Board has a residual authority to consider motions on "any other procedural matter(s)" - such motion may only be brought by a "party".


4. Offender or Alleged Offender as Party

Under s.9(1) CVCA, mentioned above, the Board shall serve a Notice of Hearing on "the offender [thus 'making' them a party], IF IT IS PRACTICABLE TO SERVE HIM OR HER" (author's emphasis)".

As noted above, it is the act of serving the Notice of Hearing on the (alleged)offender that legally "makes" them a party [CVCA s.9(2)]. Obviously then, in deciding not to serve an offender or alleged offender with a "notice of hearing" - the Board is effectively barring their status as a "party".

While the law is plain that offenders shall be served where possible - the evidence as to Board practice on this key issue is ambiguous:

• the "Fact Sheet: Applicant Information for Oral Hearing" (May 2005) states "... the Board does not send out notices of the hearing to convicted offenders".
  
  
• the "Fact Sheet: Why is There a Hearing?" (01 Feb 2006) states that "... the Board may be required to make a reasonable attempt to locate and notify the (alleged) offender of the hearing of your claim ...". That same Fact Sheet encourages applicants to advise the Board of any security concerns that they may have regarding the (alleged) offender attending the hearing.

While the nature of proceedings before the CICB is unique in administrative law - and sensitivity must be extended to alleged victims - it is a basic tenet of administrative law that all persons whose significant interests are involved in a legal proceeding (which certainly includes alleged offenders both by way of stigmatization and subrogation issues) are entitled to all notices and documentation necessary to facilitate their full "party" participation in the matter.

Therefore any policy of not serving "convicted offenders" with a Notice of Hearing (and thus barring their party status) as stated in the May 2005 "Fact Sheet" is quite and inconsistent with CVCA s.9(1 and the common law of natural justice. (see the discussion of "Fettering Discretion" in the chapter "Questionable Practices of the Board"). If - as is likely - the reasons for such a blanket policy are located in a desire to avoid victim-offender confrontation, they do not justify it. Discretion must be exercised by the presiding Board on a case-by-case basis - not as a blanket policy.

Offender participation would seem to be quite "practicable" even with an incarcerated offender. The SPPA allows the Board to "hold any combination of written, electronic and oral hearings" [SPPA s.5.2.1], provided that rules are otherwise established under s.25.1 SPPA for written or electronic hearings (see the chapter "Hearings"). Written or electronic participation by an offender is quite feasible even within an otherwise oral hearing.


5. Rights of Parties

Once "party" status is finalized (see "Who Are the Parties", above), parties [R3.1(4)]:

• may give testimony at a hearing, subject to questioning by the Board and other parties (ie. cross-examination);
  
  
• may call their own witnesses;
  
  
• may cross-examine other parties and their witnesses;
  
  Note: this suggests that other parties may be presumed to be "adverse" in interest (which will not always be the case) and thus cross-examined (ie. asked leading questions) right from the start. Normally such treatment would require a finding that the witness is "adverse" to the party calling them.
  
  
• may make legal submissions to the Board;
  
  
• may receive a copy of the Decision (unless they did not participate in the hearing).
  
  
• have legal standing to appeal the Decision.

6. "Participants"

Rule 3.2 creates an entirely new class distinct from the traditional "party" category. This is the "participant".

While there appears to be no specific SPPA authority for the creation of such a class, neither is R3.2 "inconsistent" with any SPPA rules so as to offend s.25.1(3) SPPA.

"Participants" must be named by the Board and their involvement may be subject to conditions imposed by the Board [R3.2(1)]. However note that - unlike the situation with "parties" - there is no express similar right to make a motion to resolve "participant" status, and while the Board has a residual authority to consider motions on "any other procedural matter(s)", it may only consider motions from "parties" [Rule 5.1].

"Participants" may [R3.2(2)]:

• receive "notice of hearing dates" (the Rule is ambiguous as to whether this means Notice of Hearing or just being advised of the date, perhaps by telephone);
  
  
• may give testimony at a hearing, subject to questioning by the Board and the parties (ie. cross-examination);
  
  
• may make legal submissions to the Board;
  
  
• request (apparently from the Board, which may or may not grant the request) "copies of those documents exchanged by the parties which are relevant to the participant's interest".

"Participants" may NOT [R3.2(3):

• call their own witnesses;
  
  
• cross-examine witnesses (Rule is silent re cross-examination of parties who testify, but it is a reasonable interpretation that they cannot);
  
  
• bring motions;
  
  
• appeal the Decision.

7. Legal Representation

(a) Overview

Generally, both lawyers and non-lawyer "agents" or "paralegals" may legally represent parties before the Board [SPPA s.10]. Note that the Access to Justice Act, 2006 brought "paralegals" under Law Society governance, and for most administrative law purposes they are now of equal status.

Legal representatives must file a written authorization of their status to go "on-record", and the representative or the party is required to promptly notify the Board in writing of any termination of the representation [R3.3].

Board Rule 3.4 provides that represented parties "shall" communicate with the Board through their representative, and that Board staff shall "generally" do the same when communicating with the party.

(b) "Participants"

There is no provision for representation of "participants" so it would appear that they are only entitled to be represented by counsel or agent to the extent to which they are also witnesses [SPPA s.11] (which though aren't necessarily, but can be). See the discussion of "Witnesses" in the chapter "Evidence".

It however may be a reviewing court would view the unique category "participant" established in the Rules as included in the SPPA or common law meaning of "parties", thus bringing them in the SPPA s.10 party right to counsel.

(c) Agents

As noted above, SPPA s.10 establishes the right of parties to have a "representative" (ie. counsel or a paralegal agent).

That said, all tribunals have a discretionary authority under the SPPA to "exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser." [SPPA s.23(3)].

Note that, under the Access to Justice Act, 2006 paralegals came under Law Society governance, and thus are protected under this provision. In any event, this authority is rarely used.


8. Applications by Representatives on Behalf of Victims

Note: This section deals with the making of "representative" applications on behalf of a victim (eg. for children or those who are mentally incapable). Such representatives - depending on who and what they are - may also have legal standing to make a direct application to be compensated themselves (see the section "Applicants" above), and may also end up receiving compensation awards ordered for victims directly, in their capacity as trustees or 'money-managers' for the victim (see the discussion of this under "Awards to Vulnerable Persons" in the chapter "Compensation").

(a) Overview

Special accomodations may have to be made when the victim is what the law calls a "person under disability". In civil law these include minor children (under 18 years), those who are mentally incapable and "absentees" (missing persons). Typically such individuals are legally represented by parents, guardians, trustees, "attorneys" (not lawyers, persons appointed under powers of attorney), The Public Guardian and Trustee, the Children's Lawyer or court-appointed "committees".

Note that a "committee" means a person or group of people who have been ordered by the court to be responsible for the best interests and financial management of the property of a vulnerable person under such acts as the Mental Incompetency Act (now repealed) and the Absentees Act.

(b) Parents for Children

Claims by children (under 18) must be filed and signed by their parent, guardian, legal representative or "other responsible adult" [Board "Fact Sheet: Eligibility" (Oct 2005)].

(c) "Other" Representatives

The CVCA does not expressly spell out the entitlement of the various types of legal representatives to make representative applications - although the Act does expressly recognize them as entities to whom the Board can make a compensation award in trust to be administered for a victim [CVCA s.20,21(3,4)]. Such representatives have this right by virtue of their legal duty to manage the victim's affairs or property.

The Board's "Primary Information" form at p.4 has a section for "Applicant on Behalf of Victim", which inquires as to "name of agency/organization where applicable" - so it appears that the Board has adopted a de facto practice of allowing representative applications.

There may be concerns over the scope of the allowed representatives. The Board's "Fact Sheet: How Do I Apply?" (01 Feb 2006) states:

The Board strongly discourages staff of other agencies from becoming the applicant on behalf of a person who is able to manage their own application unless the staff has been appointed as a guardian to the victim (eg. Children's Aid Worker or Trustee).

As the Board's process requires an ongoing commitment, staff may be not be able to dedicate the time required to follow up consistently to ensure the Board's requirements are met. This can prove to be distressing to victim who rely on their advocacy and support.

Given the lack of express legal rules on this situation, it is unclear to me how any "staff of other agencies" could "becom(e) the applicant on behalf of a person" unless they are otherwise a proper legal representative as listed in the "Overview" section above. However - as the above suggests however, it may be Board practice to allow (but discourage, as above) - just that.


9. Unidentified Offenders

Applications for compensation will be considered where the identity of the alleged offenders in unknown: Re Darling and the Criminal Injuries Compensation Board 11 O.R. (2d) 766 (Ont Div Ct, 1976).

The main application form: "Primary Information" - at p.2 inquire of the applicant: "Are you able to provide the name of the (alleged) offender?", clearly refecting a Board policy addressing such a problem.


10. Offenders Under 12 Years of Age

In the Divisional Court case of Masakeyash v Criminal Injuries Compensation Board (Div Ct, 2006) [also indexed as Skunk v CICB] it was held that since a child under 12 years of age could not be convicted of a crime, neither could their behaviour ground a claim under the Compensation for Victims of Crime Act.