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Criminal Injuries Compensation (Ontario)
(01 January 2015)

Chapter 5 - Applications

  1. Overview
  2. Applicants
  3. Limitation Period and Time Extensions
    (a) General
    (b) Extension Requests
    . Board Practice
    . Right to Oral Hearing
    . Procedure
  4. Application Process
  5. Board Refusal of an Application
    (a) Rule 1.7
    (b) Does the CVCA Legitimize Rule 1.7?
    (c) Does the SPPA Legitimize Rule 1.7?
    . Overview
    . Does SPPA s.4.5 SPPA Rule-Making Authority Authorize R1.7?
    . Does SPPA s.4.6 Rule-Making Authority Authorize R1.7?
    . Does Any General SPPA Rule-Making Authority Authorize R1.7?
    (d) Comment
    . Remedies
    . Actual Use of Rule 1.7

________________________________________


1. Overview

While most people would think that the making of an application is a simple process involving obtaining, filling out and filing forms - this is not necessarily the case with the CICB.

The Board's Rules purport to allow it - with dubious legal authority - to refuse to issue, accept or process applications. This is a general problem with the Rules (see the discussion of "Board Rules" in the chapter "Questionable Board Practices"). There are also legal concerns over the application forms used by the Board (see the discussion of "Board Personal Information Practices" in the chapter "Questionable Board Practices".


2. Applicants

Who may be compensated under the CVCA (eg. victims, dependents, support-providers, Good Samaritans) - and therefore who may be "applicants" - is discussed in the discussion of "Applicants" in the chapter "Parties". That discussion also covers "representative" applications on behalf of children and the mentally incapable.


3. Limitation Period and Time Extensions

(a) General

The time limit for filing an application for compensation is two years from "the date of injury or death", subject to extension by the Board as they feel is warranted. The extension may be granted either before or after the expiration of the time limit [CVCA s.6].

(b) Extension Requests

. Board Practice

The Board Annual Report for 2002/3 notes 1,026 of 4,976 that year applications "returned" for extension requests. There is no indication of how many requests were granted.

I have been unable through available documentary sources to determine the Board's procedural policies regarding extension requests. Board "Facts Sheets" and website materials do not clarify the issue - stating only that "a request for an extension of this time limit may be granted": Fact Sheet 'Eligibility' (Oct 2005). The materials are silent as to the manner of procedure for an extension "request".

The most recently-available (2002/3) Annual Report is also silent on this issue. If it were done by oral motion hearing one would expect a statistical reflection of this in the Annual Report - which otherwise seems quite thorough in reporting hearings held and their types.

On balance it appears that extensions are dealt with without oral hearing - likely by placing the written request materials before a Board member ["Fact Sheet: Important Information for Applicants" (June 2005)].

. Right to Oral Hearing

It appears however that - by law - extension requests must be heard by way of oral hearing. The issue was considered by the courts in Darling v CICB (Ontario) 11 OR (2d) 766 (Ont Div Ct, 1976). There the Court was faced on judicial review with a late-filed application and a written administrative refusal by the Board to extend time. The applicable statutory wording (quoted here) was essentially identical to the current s.6 CVCA, with the exception that the one year limitation is now two years:
s.6
An application for compensation shall be made within one year after the date of the injury or death but the Board, before or after the expiry of the one-year period, may extend the time for such further period as it considers warranted.
In deciding the appropriateness of the Board's treatment of the request, the Court referred to another section of the CVCA dealing with public access to Board proceedings. This provision 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 basis of this provision (which also survives in the present CVCA in essentially the same wording) 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.
. Procedure

If - as appears - the Board has adopted a policy of informally considering written "requests" for extension, thi smay be another instance of the Board illegitmately attempting to control its process to its preference (see the discussions of this topic in the chapter "Questionable Board Practices" - for whatever reasons.

That leaves open the question: what is the proper procedure for extending time for a late application?

Some tribunals (such as the Social Benefits Tribunal) facing similar motions usually combine the extension request with the hearing of the main case merits in a full oral hearing. However given Board practice on the issue this is unlikely to be facilitated by the Board.

Otherwise the appropriate procedure would obviously be a motion (see the chapter "Motions"). Board Rule 5 does not expressly list 'extension of time' as one of those issues, but it does allow for "other procedural matters" to be resolved. Such a motion should cite the Darling case centrally.

If the motion is this is refused summarily (perhaps on the basis that there is no hearing to 'make a motion "in" - or otherwise) then legal assistance should be sought and a judicial review application to the court may be necessary. See the chapter "Variation Reviews and Appeals".


4. Application Process
Note: It is the Board's practice to only accept original application forms which it has issued (ie. the actual same paper). Those practitioners accustomed to copying blank application forms and keeping them in a file to be used when called upon are not allowed to do this [Board "Fact Sheet: How Do I Apply?" (01 Feb 2006).
In my view there are profound - and perhaps unprecedented - problems with the Board's approach to the application process. As is discussed under the topic "Gate-Keeping" in the chapter "Questionable Board Practices", the Board's Rules purport to have the authority to refuse to 'issue, accept and process' applications. These issues are discussed below.


5. Board Refusal of an Application

(a) Rule 1.7

The Board's Rule on the issue of refusal to proceed with an application is fairly straight-forward, so I quote it here verbatim:
1.7 REFUSAL TO ISSUE, ACCEPT OR CONTINUE PROCESSING AN APPLICATION

The Board, in exercising its discretion, may refuse to issue an application for compensation, may refuse to accept an application for compensation, or may refuse to continue processing an application for compensation, on the grounds that the application:

(a) is an abuse of process, trivial, frivolous, vexatious or commenced in bad faith;

(b) relates to matters that are outside the jurisdiction of the Board;

(c) lacks some aspect of the statutory requirements for bringing an application;
As discussed above, the Board has made Rule 1.7 purportedly to guide the exercise of its discretion to refuse to 'issue, accept or process' applications.

Obviously, the ability to refuse to even "issue" an application (thus preventing it being filed) raises serious natural justice concerns in the nature of what has come to be known as "gate-keeping". If the rights granted under the CVCA are statutory entitlements - established in a democratic legislature - how can another public body (ie. the Board) be entitled to bar access to a public right without express delegated right to do so? It can only be on clear authority granted in a parent statute - which I submit is quite absent in the case of Rule 1.7. Let us examine any statutory provisions which might justify Rule 1.7.

(b) Does the CVCA Legitimize Rule 1.7?

The CVCA itself is silent on the right of the Board to deny access to application in any fashion - by refusal to 'issue, accept or process'.

(c) Does the SPPA Legitimize Rule 1.7?

. Overview

As noted in the chapter "The Board", the CICB is governed by the SPPA with regard to procedural matters. The SPPA sets out both general rules which apply to all tribunals which it governs, and rule-making authorities, which set out the rule-making powers of various tribunals (including the Board). The SPPA is discussed in detail in its own legal guide:

Statutory Powers Procedures Act Legal Guide

The SPPA contains three related rule-making provisions which are candidates to legitimize Rule 1.7. These are sections 4.5 and s.4.6, and the general rule-making authority under s.25.1.

. Does SPPA s.4.5 SPPA Rule-Making Authority Authorize R1.7?

The SPPA rule-making authority which addresses the discretion to refuse to process applications is in s.4.5 SPPA.

Briefly, s.4.5 authorizes a tribunal to make rules authorizing a tribunal or its staff to refuse to "process" documents, "upon receiving documents relating to the commencement of a proceeding", and on certain enumerated grounds. These grounds as listed in the SPPA include:
  • documents are incomplete;

  • documents are filed late;

  • non-payment of filing fee;

  • other technical defects re commencement of the proceeding.
However, any rules made under s.4.5 SPPA must require Notice to the parties setting out the reasons on which refusal is justified, and as well "the requirements for the processing of the documents to be resumed" (ie. how to fix the problem) [SPPA s.4.5(2)(3)]. The Notice must also advise the parties of an intention to exercise this authority, reasons for the intended decision, and a right to make submissions and have them considered before the authority is exercised. The rule-making authority embodied in s.4.5 is more extensively discussed in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide in the chapter "Tribunal Refusal to Proceed".

These SPPA s.4.5 grounds differ markedly from those actually set out in R1.7. The Rule 1.7 grounds are: abuse of process, lack of jurisdiction and failure to meet "some aspect of the statutory requirements for bringing an application." (The R1.7 grounds are actually drawn from SPPA s.4.6, which governs the summary dismissal of proceedings - more on this below).

In any event, of the s.4.5 SPPA-authorized grounds for refusal, only the second(late filing) can arguably be located in R1.7 ("lacks some aspects of the statutory requirements") as the limitation period for filing is embodied in the CVCA at s.6.

Any problem with non-payment of fees would be based upon regulations passed by cabinet regarding such fees and are arguably not "statutory requirements". In any event, no fee regulations have been passed into law to date so this ground is moot.

The balance of the SPPA s.4.5 grounds for refusal to process are technical in nature: "documents are incomplete" and "other technical defects re commencement of the proceeding, which are not found in R1.7.

Rule 1.7 then - considered as a Rule made under s.4.5 SPPA authority - is seriously flawed as follows:
  • by purporting to authorize a refusal to 'issue, accept or process' an application, it exceeds the authorized remedial response which is only to refuse to 'process' "upon receiving documents relating to the commencement of a proceeding";

  • the enumerated grounds for refusal are almost all unjustified;

  • the absence of required notice provisions, including the right to reasons for the intended decision, and information as to how the problem may be fixed;

  • the right to make and have submissions considered before final refusal is lacking.
. Does SPPA s.4.6 Rule-Making Authority Authorize R1.7?

The next questions then is whether R1.7 is authorized by s.4.6 SPPA. The rule-making authority embodied in s.4.6 is more extensively discussed in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide in the chapter "Summary Dismissal for Cause".

As noted above, R1.7 draws it "grounds" practically verbatim from s.4.6. But this is the end of the similarity: the remedial authority granted to a tribunal under s.4.6 is to "dismiss a proceeding" - NOT to refuse to issue, accept or process and application as set out in Rule 1.7. A "proceeding" must be afoot (and therefore an application having been filed and accepted) before it can be dismissed.

Briefly, s.4.6 governs the range of a tribunal's rules to "dismiss a proceeding without a hearing" on the grounds that:
  • it is frivolous, vexatious or is commenced in bad faith;

  • lack of jurisdiction;

  • "some aspect of the statutory requirement for bringing the proceeding has not been met".
Similarly as with s.4.5 SPPA-made rules (discussed above), any s.4.6 SPPA rules must require Notice to the parties of an intention to exercise this authority, reasons for the intended decision, and a right to make submissions and have them considered before the authority is exercised. These however are all lacking in Rule 1.7.

Section 4.6 SPPA is inadequate authority for R1.7, being seriously flawed as follows:
  • by purporting to authorize a refusal to 'issue, accept or process' an application, it exceeds the authorized remedial response which is only to 'dismiss proceedings'. Plainly one cannot have a "proceeding" afoot - which can be dismissed - unless an application has been made - which R1.7 prevents whenever it is used.

  • the absence of required notice provisions, including the right to reasons for the intended decision, and information as to how the problem may be fixed;

  • the absence of the right to make and have submissions considered before final refusal is lacking.
. Does Any General SPPA Rule-Making Authority Authorize R1.7?

An open issue remains as to whether R1.7 is authorized by the general SPPA rule-making authorities. Any defenders of Rule 1.7 would likely look to these provisions for justification.

The Board no doubt locates it's authority for R1.7 on the broad wording of several provisions of the SPPA such as s.25.1 and s.25.0.1. As a pair of provisions they are largely redundant so I will focus in the s.25.1 authority.

Sections 25.1 authorizes a tribunal to "make rules governing the practice and procedure before it". The question then is whether this broad GENERAL rule-making authority is sufficient to justify R1.7 - over and above the application of the SPECIFIC rule-making authorities found in SPPA s.4.5 and 4.6 (particularly s.4.5), discussed above.

Under the topic "Board Rules" in the chapter "Questionable Board Practice" I present a more detailed legal refutation of this position; the reader is referred to that.
Note: The mention of "abuse of process" as a R1.7 ground suggests recourse to s.23(1) SPPA, however that provision only authorizes a Board to "make such ORDERS [emphasis added] or give such directions as it considers proper to prevent abuse of its processes" - it does not by itself authorize rule-making.
(d) Comment

. Remedies

As per the above discussion, in my analysis the Board lacks legal authority or jurisdiction to make Rule 1.7 and that it is therefore null and void in law.

However - barring the Board "seeing the light" one bright morning, applicants will still have to deal with the Board's perceptions as to its legal rights, most likely by way of judicial review (see the chapter "Variations Reviews and Appeals").

. Actual Use of Rule 1.7

It is interesting to inquire as to the degree to which Rule 1.7 has been applied by the Board. The most recently- available (2002/3) Annual Report is silent on the degree of use of Rule 1.7 as a preliminary refusal mechanism - statistically or otherwise.

The Annual Report (p.11), in a "Claim Processing Flow" Chart, shows a "yes/no" decision stage, where the issue is whether the "Claim falls under the Compensation for Victims of Crime Act." A "no" answer terminates the process. As this stage in the flow chart falls IMMEDIATELY after "Initial contact with CICB" is seems fairly plain that it represents a preliminary vetting process just such as Rule 1.7 embodies.

Evidence as to the use of Rule 1.7 may be indirect. 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)] and in the Annual Report noted only 4,976 applications received. Some of these of course will be due to non-filing by the potential claimant - but one is left to wonder how many are persuaded not withdraw their requests or simply barred under the provisions of Rule 1.7.
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