The Board has discretion to make awards in the form of lump sum or periodic payments [CVCA s.18]. Periodic payments are much rarer and obviously apply where there is on-going loss and expense.
However, the Board has issued a "Fact Sheet: What Types of Awards Does the Board Make" (01 Feb 2006) which states that that periodic payments "can be made in cases where there is permanent injury or loss of support".
There is nothing within the CVCA to limit periodic payments to "PERMANENT injury or loss of support". Logically an "on-going" injury for which the prognosis is uncertain is just as eligible for periodic payments. This is just another of many attempts by the Board to fetter its discretion (see "Fettering Discretion" in the chapter "Questionable Board Practices".
Persons receiving periodic payments can expect to be subject to "Variation Reviews" by the Board (see that topic in the chapter "Reviews and Appeals".
(b) Payment Terms and Conditions
The Board may impose terms and conditions on an award, including terms and conditions [CVCA s.21(1)]:
"with respect to the payment, disposition, allotment or apportionment of the compensation", or
providing for the placing of compensation in trust for the victim and/or their dependents, including class funds.
The Board may order that compensation for unpaid or future expenses be paid directly to the supplier of the goods and services [CVCA s.21(2)].
(c) Awards to Vulnerable Persons
. Minors
In the case of minor children entitled to awards (those under 18 years of age), the Board may apply awards "in such manner as the Board considers in the best interest of the minor", and may make payment of such awards to any the following [CVCA s.21(3)] fiduciaries:
to their parent or guardian,
to their spouse, if the spouse is not a minor,
the Accountant of the Superior Court of Justice, or to
"(a)ny other person, if the Board considers payment to that person in the best interest of the minor".
Amounts so paid on behalf of the minor "shall be received and administered by the payee for the benefit of" that person.
. Incapable Persons
In the case of persons entitled to awards who are "incapable as defined in the Substitute Decisions Act, 1992" or that are, in the opinion of the Board, incapable of managing their own affairs, the Board may apply awards in such manner as the Board considers in their best interests, and may make payment of such awards to any the following [CVCA s.21(4)]:
"(i)f a guardian of property or attorney for property has been appointed under the Substitute Decisions Act, 1992 for the incapable person, the guardian or attorney"; or
"(i)f no guardian of property or attorney for property has been appointed under the Substitute Decisions Act, 1992 for the incapable person," then either to:
. the Public Guardian and Trustee, or to
. "(a)ny other person, if the Board considers payment to that person in the best interest of the incapable person".
Amounts so paid on behalf of the incapable person "shall be received and administered by the payee for the benefit of" that person.
(d) No Attachment of Awards
"Any money paid or payable by way of compensation under this Act", or "held by the Public Guardian and Trustee or other person" respecting a minor person under a Board order [as in (c) above], is not subject to "garnishment, attachment, execution, set-off or any other legal process and the right thereto is not assignable" [CVCA s.20].
Note:
This provision is troublesome from an interpretation perspective because - while it includes awards held on behalf of minors in this exemption - it does not expressly include awards held on behalf of incapable persons [see this distinction in (c) above]. The interpretation problem is exacerbated by the generality of the phrasing "(a)ny money paid or payable by way of compensation under this Act", which arguably includes any Board-ordered monies held as well.
When it operates, this provision protects award monies from debt collection efforts, from deduction from debts owed by the recpient to the government, and also renders void any arrangement whereby the recipient or their trustee seek to "sell" the award - for instance in a contingency fee arrangement.
A practical problem arises when such monies are placed in a bank account and mingled with other funds. It may be wise to put such funds in a separate account and clearly (ie. in writing, keeping copies) notify the financial institution of the nature of the funds and their attachment-exempt status.
(e) Cashing Award Cheques
It appears to be the practice of the Board to issue compensation cheques immediately upon advising applicants of an award.
Care must be taken in these circumstances if the applicant wishes to have the award reviewed or appealed to a court. The Board takes the view that this cannot be done until the award cheque is returned uncashed. See this discussion under the topic "Board Review of Single Member Decisions (s.10 Reviews): Stay of Order" in the chapter "Reviews and Appeals".
The amount of compensation awarded an applicant is the product of several factors, some discretionary on the part of the presiding Board and some mandatory.
When considering whether to order compensation or not, and the amount thereof if any, the Board shall consider:
all relevant circumstances, including any behavioural role of the victim which may have directly or indirectly contributed to the injury or death [CVCA s.17(1)] ("Contributing Behaviour");
whether in its opinion the applicant "has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency." [CVCA s.17(2)]
Case Note:Liendo v CICB (Div Ct, 2008)
This provision was applied on clear facts to reduce a compensation award in the case of Liendo v CICB (Div Ct, 2008).
"any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance." [CVCA s.17(3)] ("Collateral Benefits")
Historically, two of these factors where applied by the Board (before they were embodied in legislation) in the case of Sheehan v CICB (Ontario) 5 OR (2d) 781 (Ont CA, 1975). Sheehan is sometimes cited as authority for the proposition that the Board is entitled to a high degree of autonomy when selecting what factors are relevant to the granting of an award. However amendments to the governing legislation since that time have undermined this position (see the discussion in the chapter "The Board"). It is likely that the Board's discretion will in future be limited to factors listed by statute (ie. above) and others viewed as relevant and reasonable by a reviewing court, and that the high "deference" shown to the Board by the court as in the Sheehan case is at an end.
Awards are also subject to a series of mandatory (for the most part) statutory maximums. The Board has been criticized by the courts in past for adopting their own maximum awards by "policy".
Case Note: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.
(b) Contributing Behaviour
. Overview
The inclusion of "any behavioural role of the victim which may have directly or indirectly contributed to the injury or death" as a compensation factor brings to mind the tort concept of "contributory negligence" and its use to reduce tort damage awards, as embodied in the Negligence Act. .
. Board Practice
The 2002/3 Board Annual Report characterizes it's function as "providing compensation to INNOCENT victims of crimes of violence" (emphasis added). This is clearly a misstatement of the law and it is to be hoped that it is not reflective of the Board's culture (though it also occurs in the 2001/2 Annual Report). That same Annual Report summarizes a case in which compensation to a relative was denied on the basis that the murdered victim was most likely involved with either drug dealing or a prior murder, and as such behaviourally contributed to his death. That said, the cases cited in this Annual Report are selected and may not be representative.
In any event, the role of a victim's behaviour is simply one factor among several which the Board can apply in determining whether to grant an award and - if so - how much. Further, the court case law (reviewed below) holds that extremity of injury operates to reduce the significance of any contribution by the victim.
. Case Law
In Dalton v CICB (Ontario) 36 O.R. (2d) 394 (Ont Div Ct, 1982) a woman was severely injured when thrown out of a moving vehicle after accepting a lift from two men met after a night of drinking. The Court reversed a Board finding which denied her claim on the basis that she was responsible for her own injuries by being careless as to her company and circumstances. The Court held that the severity of injury was a factor which mitigated her contribution, and that the Board should have weighed any responsibility on her part towards reduction of the award amount rather than denial. Complete denial of an award is only justified where injury is slight.
In the case of Mark v CICB (Div Ct, 2010) the court, noting the many references to Dalton in subsequent cases, commented:
[34] It is evident from these cases that the Board is not entitled to begin and end its proportionality analysis simply by finding that the contributory conduct by an applicant was criminal in nature. There must still be a consideration of the extent to which the applicant’s conduct contributed to his injury and a comparison between the nature of that conduct and the severity of the injuries inflicted. Criminal conduct by the applicant, whether in the past or at the time of the injury, may be a factor to be taken into account under s. 17(1), but it is only one of the relevant factors. It is a legal error to treat the existence of criminality on the part of the victim as determinative of the issue of compensation.
.In Manson v CICB (Ontario) 68 OR (2d) 222 (Div Ct, 1989) the applicant was shot after he advanced on a man who was threatening him with a gun in the context of a gambling dispute. The applicant was injured permanently - though mildly - in one arm. The Court refused an appeal of the Board's refusal to grant an award as "there was ample evidence that the conduct of the victim which led to the offence involved flagrant, reckless, or foolish disregard for his own safety". There is no requirement for contributory behaviour that the behaviour itself be illegal.
In Ontario AG v CICB 22 OR (3d) 129 (Div Ct, 1995) the Board applied s.17 of the CVCA to reduce by 40% pain and suffering awards to three women who had unprotected sex with a man who (they did not know) was HIV infected. The Divisional Court allowed an appeal, finding that the test for contributory behaviour was that of the "reasonable and prudent person", and that the Board had erred in law in its assessment of the proportional contribution to the harm caused by the respective parties - the behaviour of the offender being "outrageous" and the harm to the woman extreme (as in Dalton, above).
In Smith v CICB (Div Ct, 2009) the Divisional Court allowed an appeal where the CICB applied s.17(1) to completely deny an award solely on the fact that the murdered victim (the appellant's son) was involved in the illegal drug trade. The court required that the CICB reconsider the case in light of the proportionality principles established in Dalton (considered above). The court endorsed the appellant's submission that "the Board was required to undertake analysis as to the proportionality between the alleged conduct of the victim and the acknowledged criminal conduct of the offenders".
In Tatti v Criminal Injuries Compensation Board (Div Ct, 2013) the applicant claimed mental and nervous shock compensation for witnessing the violent death of his former spouse. The court allowed an appeal where the Board disallowed compensation under CVCA s.17(1) due to the behaviour of the victim spouse which it held contributed to her death. Her behaviour alone could not be applied to preclude the applicant being granted compensation. In sending the matter back to the Board for reconsideration the court did however allow the possibility that such contributory behaviour of the deceased might still be applied by the Board against the applicant as a s.17(1) "relevant circumstance()".
In Bunch v. Criminal Injuries Compensation Board (Div Ct, 2014) the court upheld the Board's application of the applicant's lengthy criminal record as a s.17(1) "relevant circumstance" against his application.
(b.1) Subsequent Behaviour
In the case of Sweet v. Ontario (Attorney General) (Div Ct, 2011) the court considered whether the expansive phrasing "the Board shall have regard to all relevant circumstances" in CVCA s.17(1) entitled it to consider the subsequent (ie. post-victimization incident) behaviour of the victim in it's discretion to grant compensation, and if so how much. Here the victim of childhood physical and sexual abuse himself committed criminal acts (including rape) later in life. The court concluded that the Board could consider such subsequent behaviour in it's decisions .
(c) Collateral Benefits
. Overview
"Collateral benefits" is an issue created when two or more compensation systems cover the same damage or loss. If both systems cover it, the claimant can be "double-compensated". Each compensation system - public or private - must decide what available "collateral benefits" it will deduct and which it will allow the claimant to keep. Administratively, they decide this independently from each other under their own legal rules.
. CICB Treatment
As noted above, 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)].
This means that the Board has discretion to (and almost always will) deduct any AVAILABLE collateral benefits when it makes its compensation order - except social assistance (discussed below). In fact the CICB application package includes a "Benefits Form" (to be completed by the applicant) which canvasses benefits such as employment insurance, CPP, WSIB, private insurance coverage and any other form of available benefits so that the Board will have that information available. Lying to the Board about a collateral benefit source (whether paid from it or not) is serious and could lead to criminal charges for fraud.
. OW and ODSP Treatment
As mentioned, Ontario's two social assistance programs: "Ontario Works" ("OW" or "welfare") and "Ontario Disability Support Program" ("ODSP"), are exempt from collateral benefit deduction from the CICB viewpoint.
However that is not the end of the story. Any CICB award must still be examined from the OW or ODSP viewpoint. Like any benefit program they have their own rules about "collateral benefits".
Both of these programs are heavily means-tested so that any income must be reported and will generally (there are exceptions) be deducted dollar-for-dollar from assistance. Similarly, both programs are subject to "asset caps", such that when a recipient's assets are above the "asset cap" benefits are terminated until they once again fall under the "asset cap".
Both programs provide that the portion of compensation for "pain and suffering" (from ALL sources - including the Board) is exempt from income and asset assessment and deduction as follows:
Ontario Works: A maximum of $25,000 compensation or damages for injury to or death of a member of the "benefit unit" (this is the group of people under one assistance cheque, typically a family - otherwise check with your welfare worker) for "pain and suffering" and "expenses" resulting from the injury or death [OWA s.39(1)(12), s.54(1)(4)].
ODSP: For income assessment: as above but no maximum [ODSPA s.43(1)(4)]. For asset assessment: a maximum of $100,000 - unless the the overage covers "expenses", in which cases the maximum increases accordingly [ODSPA s.28(1)(14)].
Other parts of a Board compensation award - typically for loss of income and expenses - are assessible as assets and deductible as normal non-exempt income.
There can be serious criminal consequences for social assistance recipients if they fail to report income and assets to their workers - EVEN IF they think the amounts are exempt. Recipients should report the amounts so the worker can assess its impact on social assistance. If the recipient THEN disagrees with the treatment, it should be fought through the social assistance review and appeal system.
. "Other" Collateral Benefits
If the Board decides not to deduct "other" (eg. private insurance, EI, etc) forms of collateral benefit then - at least as far as the Board is concerned - the claimant may keep both - or be "double-compensated".
Of course - once the Board is satisfied with the collateral benefit situation - the claimant still has to run all this by the "other" benefit system that paid them (of which there are many) to see how they will treat the CICB income. Explaining all of these "other" systems and how they will treat CICB income is a large topic beyond the scope of this program.
A related topic, the DUTY to repay the Board when a collateral benefit is received, is covered in the section "Subrogation" (below).
(d) Maximum Awards
. Overview
Awards are subject to statutory maximums or "caps" per victim, per occurence (there can be several applicants other than the "victim": see the chapter "Parties and Participants), and by whether the award is "lump sum" or "periodic". For the purposes of these caps the Board may interpret an "occurence" to include more than one act where the acts are related in time and place [CVCA s.19(4)].
Awards for injury and death incurred in "Law Enforcement" activities (see the topic "Law Enforcement Claim - Common Law Damages" under "Law Enforcement Causation", above) are not subject to these caps [CVCA s.19(5)].
. Maximum Award per Victim
The cap per injury or death of one victim is [CVCA s.19(1)]:
for lump sum payments, $25,000;
for periodic payments, $1,000/month;
where both are awarded, the lump sum is capped at $12,500.
These lump sum caps do not apply where the injury or death occured as a result of "Law Enforcement" activities (see "Law Enforcement Causation", above) [CVCA s.19(5)].
. Maximum Total Awards per "Occurence"
The cap for awards to ALL applicants (eg. victim, dependants, care-givers, etc) in respect of one occurence is [CVCA s.19(2)]:
for lump sum payments, $150,000;
for periodic payments, a total of $365,000.
Where these caps are exceeded (presumably by compensation orders made in several separate proceedings brought with respect to the same occurence) then the total amounts shall be reduced to the cap maximum and distributed on a pro rata basis as per the original awards (ie. everybody's award get knocked down by the same percentage to reach the cap) [CVCA s.19(3)].
Amounts awarded for injury or death incurred as a result of "Law Enforcement" activities (see "Law Enforcement Causation", above) do not count towards these caps [CVCA s.19(5)].
. Case Law
In Cogan v CICB (Ontario) OJ #2405 (QL) (Div Ct, 1992) the claimant was subject of a home assault by an unknown assailant and later a separate attempted purse-snatching for which an arrest was made. The Board ordered an aggregate lump sum payment of $25,000 for both incidents, feeling itself bound by the s.19 cap in that amount, which reads:
s.19(1)
The amount awarded by the Board to be paid in respect of the injury or death of one victim shall not exceed,
(a) in the case of lump sum payments, $25,000; ...
The Court disagreed with the imposition of the cap in this fashion for the two separate incidents, stating:
It was open to the Board to conduct one hearing which embraced both the July 30, 1989 incident and the June 19, 1990 incident. However, it was incumbent upon the Board to keep the two occurrences separate and apart for the purposes of fashioning awards.
In Leung v CICB (Ontario) 24 OR (3d) 530 (Div Ct, 1995) the court reviewed a BOARD policy (not the caps set in CVCA, see "Maximum Awards" below) which capped award amounts for loss of wages. While the Court upheld the result on the facts, it criticized the policy as fettering the discretion granted to it. 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 (ie. it was "averaging" awards by available money):
... 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 ...
(e) Board Practice
There is no reliable method to predict the amount of compensation that will be ordered on any set of facts. In any damage assessment system where the adjudicator holds such large discretion applicants should expect wide variation in the quantum of awards from member to member.
That said, the Board reports that in the fiscal year 2002/3 their average award was $7,113 - up $32 from the previous year. There are no statistics of quantum broken down by type of injury or crime.
Examples of amounts awarded (or refused) in various circumstances may be viewed at the CICB website in the Annual Reports - but there is no guarantee that these are representative:
Where the Board is of the view that "the applicant will probably be awarded compensation" it may order interim payments for support, medical and funeral expenses [CVCA s.14(1)]. If compensation is not eventually awarded, interim payments are not recoverable [CVCA s.14(2)].
The Board's 2002/3 Annual Reports states the Board's practice of covering "emergency expenses resulting from a personal injury or death such as medical expenses, funeral expenses generally to a maximum of $6,000 and interim counselling generally up to $5,000)
In the fiscal year 2002/3 the Board awarded $200,000 interim assistance over 212 cases. The figures for 2001/2 were $196,000 over 141 cases.
(b) Evidence Assistance
The 2002/3 Annual Report (p.10) states that since 1998 "the Board resumed payment for all hospital records, medical, dental and therapy reports that are required to process a claim for compensation." Applicants should inquire of the Board regarding current coverage for these items.
The Report also notes for the fiscal year 2002/3 that the Board awarded $598,000 for "Medical Reports and Other" over 3,479 files. The figures for 2001/2 were $337,000 over 2,797 files. These numbers reflect a very high use of this form of assistance to applicants.
Of course (setting aside the CVCA system aside for a minute) any victim and their dependents (ie. Family Law Act damages) can try in the courts to recover civil damages from the person or persons who were negligently or intentionally responsible for injury or death. The problem with this is that usually the defendant in such a case has no money and a judgment can end up being worthless.
In any event, collecting compensation from the Board does not change this right CVCA s.26(1)], although the Board is be entitled to a refund of any compensation award (not other monies) it has paid to the victim in relation to those events [CVCA s.26(5.1)]. Further, the plaintiff in such an action shall forthwith notify the Board of the commencement of such a lawsuit, even if they haven't received any compensation yet [CVA s.26(5)].
As well, if and when compensation has been made, the Board itself has a "subrogated" right of action against whoever caused it.
(b) "Subrogation"
The Board has a right to conduct such a lawsuit - in the name of the award recipient - against those who caused the injury or death a victim to whom a compensation award has been made (this is called a "right of subrogation"). Any amounts so recovered shall be applied in the following order of priority [CVCA s.26(2)]:
costs of the lawsuit and execution (collection) expenses;
refund to the Board of the compensation award;
to the persons whose rights were subrogated.
If the Board elects to limit their subrogated claim to the amount of the compensation award/s, then it may conduct the lawsuit in the name of the Attorney-General instead of the victim [CVCA s.26(3)] (in this case there is no residual payback to the victim expected).
Any compensation award recipient has a duty to the Board to cooperate and give information as required for the purposes of facilitating the Board's subrogated claim [CVCA s.26(6)].
Settlement or release of such a lawsuit between the plaintiff and the defendant does not bar the Board's right of subrogation (below) unless the Board has concurred in the settlement [CVCA s.26(4)].
(c) Re-Payment to Board from Civil Judgments
As noted above, a recipient of a compensation award must repay it back to the Board from any civil damage awards received [CVCA s.26(5.1)].
A 1980 case held that - despite the Board's right of subrogation - if a recipient notifies the Board of their lawsuit against the offender and the Board declines to exercise their subrogation right, then that right is extinguished: Berlingieri v DeSantis 31 OR (2d) 1 (Ont CA, 1980). While this principle may still be valid strictly for the issue of subrogation, the Board's (now) express right of repayment appears to render this case obsolete.
The right of the Board to subrogation (and likely repayment) re-payment exists regardless of the specific heads (types of damage) awarded in a civil damage action and how these differ from the types of compensation in a Board award. The Board is entitled to be compensated under its subrogation right on the basis of the total quantum its compensation provided: CICB v Ditroi 8 OR (2d) 133 (Ont CA, 1975).
Any such recovered money is paid into Ontario's Consolidated Revenue Fund. [CVCA s.27(2)].
At the date of writing Judge Watt (who wrote the Pitters decision discussed above on the role of "accident" in a crime of violence) had just concluded a high-profile criminal case involving the accidental shooting of a woman (Russo) in the course of a botched murder attempt. As part of the sentencing of the several offenders the woman was to receive $2 million in "restitution" for her serious spinal cord injury. The case the subject of much media attention on whether it constituted buying a lighter sentence.
The case highlights the existence of another source of compensation available to victims of crime: restitution under the Criminal Code. The applicable Criminal Code provision is linked here:
