Alberta (Solicitor General and Public Security) v. C.J., 2011 ABQB 192

Court of Queen ’ s Bench of Alberta Citation: Alberta (Solicitor General and Public Security) v. C.J., 2011 ABQB 192 Date: 20110328 Docket: 1103 00115 Registry: Edmonton Between: The Solicitor General and the Minister of Public Security and the Criminal Injuries Review Board Applicants - and - C.J. and the Criminal Injuries Review Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________

Summary: [ 1 ] Two applications for judicial review were made in respect to related decisions made by the Criminal Injuries Review Board (the “Board”). The Solicitor General and Minister of Public Security (the “Minister”) made application under s. 14(10) of the Victims of Crime Act RSA 2000, c. V-3 for review of a decision by a panel of the Board to grant financial benefits to an applicant on the basis that she was a victim of crime. The same applicant also applied for a death benefit under the legislation but this was denied by the director.

The applicant applied for judicial review of the decision of the Chair of the Board under s. 14(3) of the Act, who declined to permit a review by the Board of the director’s decision. Facts:

[ 2 ] On April 29, 1970, when C.J. was seven years old, she witnessed the beating death of her 15 month old sister at the hands of her foster mother. C.J. repressed this memory for many years but suffered from significant mental health problems and unhealthy life choices. The Board accepted on evidence that C.J.’s psychological injuries were caused by witnessing her sister’s homicide. [ 3 ] The Board concluded that C.J. was entitled to financial benefits under the Act because she was a “victim of crime” as defined under the Act.

The Minister seeks judicial review of this decision (“Minister’s Application”) [ 4 ] The Designate of the Director of the Victims of Crime Financial Benefits Program (the “Director”) denied C.J.’s application for a death benefit under the Act as the sister of the deceased child and, instead, awarded the full amount of this benefit to the father of both C.J. and the dead sister. The Chair of the Board dismissed C.J.’s application to review the Director’s decision. C.J. seeks judicial review of this decision. (“C.J.’s Application”) Issues: [ 5 ] There are two issues in respect to each of the applications: a.

Respecting the Minister’s Application: i. What is the appropriate standard of review of the decision made by the Board? ii. Applying the standard of review to the decision, should it be disturbed? b. Respecting C.J.’s application: i. What is the appropriate standard of review of the decision made by the Chair of the Board? ii. Applying the standard of review to the decision, should it be disturbed? Minister’s Application - Positions of the Parties: [ 6 ] The narrow point raised in the Minister’s Application is the

interpretation of the term “victim of crime” under the Act. [ 7 ] The Minister’s position is that only a person against whom a crime is committed is a “victim of crime” under the Act. In the Minister’s submission, it is incorrect and an unreasonable

interpretation of the Act to conclude, as did the Board, that a person such as C.J. who witnessed a crime and suffered psychological injury is included in the term “victim of crime”. [ 8 ] The Board’s position is that on a proper

interpretation of the Act, its decision was both correct and reasonable. [ 9 ] C.J. supported the Board’s position. The Legislative Framework:

[ 10 ] The Victims of Crimes Act, RSA 2000, c. V-3 (the “Act”) provides assistance and benefits to victims of crime. It establishes the Victims of Crime Fund and sets out the purposes for which this fund can be used. One of these is to pay financial benefits in the circumstances and in the amounts set out in the Act and in the Victims of Crime Regulation AR 63/2004 (the “Regulation”), passed pursuant to the Act. [ 11 ] Under s. 12 of the Act , certain persons are permitted to apply to the Director of the Victims Crime Fund for financial benefits.

The basic requirements that an applicant must meet are set out in s. 12(1), which is as follows: 12(1) Subject to subsection (4), the following persons may, in accordance with the regulations, apply to the Director for financial benefits if the injury to or death of a victim was the direct result of

an act or omission that occurred in Alberta and is one of the offences under the Criminal Code (Canada) specified in the regulations: [emphasis added] (

a) in respect of the victim’s injury, the victim; (

b) in respect of the victim’s death, a dependant or, if the victim dies leaving no dependants, (

i) a spouse or adult interdependent partner, parent, child, sister or brother of the victim who is not a dependant, or (ii) any other person who in the opinion of the Director is eligible for financial benefits. 12(2)... 12(3)... 12(4) The following are not eligible for financial benefits: (

a) a person who is convicted of a criminal offence arising from the events that resulted in the injury or death of the person; (

b) a dependant of a person described in clause (

a) unless the dependant is also a dependant of another person who is a victim as a result of the same events; (

c) a spouse or adult interdependent partner, parent, child, sister or brother of a person described in clause (

a) who is not a dependant unless, in the case of a parent, child, sister or brother, the parent, child, sister or brother is also a parent, child, sister or brother of another person who is a victim as a result of the same events. [ 12 ] ‘Victim’ is defined in s. 1(

l) as: “victim” means (

i) with respect to financial benefits, a person who is injured or dies as a direct result of

an act or omission described in section 12(1) [emphasis added]

[ 13 ] Under s. 13 of the Act , it is the Director who must determine in the first instance whether a person is eligible for financial benefits under s. 12: 13(1) On receipt of an application for financial benefits, the Director must determine, in accordance with this Act and the regulations, whether a person is eligible under

section 12 for financial benefits and, if so, the amounts of the financial benefits, if any. [ 14 ] Under s. 14(1), an applicant for financial benefits can apply to the Board for a review of a decision of the Director. Under s. 14(6), the Board may rescind, confirm, or vary a decision of the Director: 14(1) A person may apply to the Review Board for a review of a decision of the Director under

section 13 or 15 not later than 30 days after the receipt of a copy of the decision of the Director provided under

section 15.1. ... 14(6) The Review Board may (

a) rescind, confirm or vary a decision of the Director as to eligibility for financial benefits under this Act or under an order under the Criminal Injuries Compensation Act , (

b) rescind or confirm a decision of the Director made under section 13(3)(

b) or (c), or (

c) confirm the determination of the Director or vary the determination of the Director as to the amount of financial benefits determined in accordance with the regulations under this Act by increasing or decreasing the amount to be paid. [ 15 ]

Section 2 of the Regulation sets out the general principles to be followed in making a determination about the financial compensation to be paid. It says this: The following principles are to be applied with respect to making a determination under this Schedule: (

a) all injuries must be verified and be a direct result of the offence committed against the victim and verified by a medical professional with the qualifications appropriate to the injury; Minister’s Application - Standard of Review: [ 16 ] The parties agree that the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick , 2008 SCC 9 , is the leading authority on determination of the appropriate standard of review. [ 17 ] In Dunsmuir , the Court set out a principled framework for judicial review that sought to be more coherent and workable than the previously used pragmatic and functional approach.

As a consequence of this case, the three standards for review have been compressed to two, correctness and reasonableness, under what the Court refers to as the “standard of review analysis.” There is no longer a patently unreasonable standard. [ 18 ] The majority in Dunsmuir stated at para. 48 that compressing the two reasonableness standards into one is not to be seen as justification for a more intrusive review by courts and does not represent a return to the formalistic, artificial “jurisdiction” test that ruled

prior to the late 1990’s. Reasonableness was described as a deferential standard animated by the principle that underlies the developmentof the two previous standards of reasonableness. The majority indicated at para. 47 that: ... reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-makingprocess.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible inrespect of the facts and law. [19] The Court in Dunsmuir described deference as both an attitude of the court and a requirement of the law of judicial review.This approach imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.

As statedby Bastarache and LeBel JJ. at para 49: ... deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for theprocesses and determinations that draw on particular expertise and experiences, and for the different roles of the courts andadministrative bodies within the Canadian constitutional system. [20] In contrast, the correctness standard requires the court to undertake its own analysis of the question without showingdeference to the decision maker’s reasoning process: para. 50. [21] There are two steps in the Dunsmuir standard of review analysis: a.

Determine whether the degree of deference is well settled by the case law with respect to a particular category of question. b. If not, the second step is a contextual analysis of the four factors identified and applied since Pushpanathan v. Canada (Ministerof Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982.

Not all of these factors need necessarily be consideredif some of the factors are determinative of a reasonableness standard in a specific case. [22] The majority in Dunsmuir set out a number of factors that may suggest the reasonableness standard: a. questions of fact, discretion and policy suggest a reasonableness standard and deference will usually apply automatically: para.51; para. 53; b. questions where the legal issues are intertwined with and cannot be readily separated from the factual issues suggest areasonableness standard.

Again deference will usually apply automatically: para. 51; para. 53; c. the existence of a privative or preclusive clause is a ‘strong indication' of review by a reasonableness standard: para. 52; d. where the tribunal is interpreting its own statute or statutes closely connected to its function and with which the tribunal hasparticular familiarity or special expertise, this suggests a reasonableness standard: para. 54; para. 55; e. where a tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to aspecific statutory context, i.e. labour relations, a reasonableness standard is more likely to apply: para. 54. [23] On the other hand, the correctness standard will apply:

a. in constitutional questions, including those regarding the division of powers between Parliament and the provinces: para. 58; b. where there is a question of general law that is of central importance to the legal system and is outside the specialized area of expertise of the administrative decision maker: para. 55; para. 60; c. to true questions of jurisdiction or vires .

In making this point, the Supreme Court defined jurisdiction in the narrow sense of whether its statutory grant of authority gives the tribunal the authority to decide a particular matter: para. 59; d. to questions regarding the jurisdictional lines between two or more competing specialized tribunals: para. 61. [ 24 ] The Minister’s Application is to review a decision issued by the Board on September 2, 2010.

In that decision, the Board concluded that C.J. was a victim of crime as this term is used in the Act and was therefore eligible for financial benefits. [ 25 ] The Minister’s position is that the standard of review is correctness. The Board’s position is that the standard is one of reasonableness. [ 26 ] I am directed by Dunsmuir to first determine whether the degree of deference is well settled by the case law with respect to a particular category of question. The Minister points to the Court of Appeal’s decision in R.(T.) v.

Alberta (Criminal Injuries Review Board) 2006 ABCA 306 in support of their contention that the correctness standard applies. That Court concluded that

interpretation of s. 12(2) of the Act respecting time limits, attracted a standard of correctness. However, R.(T.) was decided before Dunsmuir issued. I have also reviewed I.(E.) v. Alberta (Criminal Injuries Review Board) 2009 ABCA 309 , which case was decided post - Dunsmuir. In I. (E.) the Court said the parties had agreed that the standard of review to be applied in respect of questions involving

interpretation of the Act and the Regulation was one of reasonableness. It is not clear from the decision whether the Court agreed with the parties’ characterization of the standard of review or simply accepted their agreement.

The degree of deference does not appear to be well settled by case law and a Dunsmuir analysis is warranted. [ 27 ] Under Dunsmuir, particular attention should be given to the nature of the question in dispute, as the Supreme Court considered a deferential approach was necessary where the nature of the question is one of fact, one of law and fact where they cannot be readily separated, and questions of policy or discretion: para. 53. Nonetheless, questions of law may still be subject to deference.

The majority in Dunsmuir listed several examples where the correctness standard of review will be appropriate, such as: general questions of law that are "both of central importance to the legal system as a whole and outside of the adjudicator's specialized area of expertise": see paras. 55 & 60; and "true" questions of jurisdiction or vires , which were defined as those questions where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter: see para. 59. [ 28 ] The question at issue in this application is the meaning of the term ‘victim’ and of the phrase ‘the direct result of

an act or omission’ as it appears in s. 12 of the Act .

Interpretation of a statute is a question of law. While counsel for the Board argued that the question was one of mixed fact and law, I do not agree. There was no issue between the parties with respect to the application of the law to the facts as found by the Board. The sole issue was the meaning of the terms. [ 29 ] However, in making its decision, the Board was interpreting its own statute. Typically this will be subject to deference: Dunsmuir , at para. 54 .

Nor does the question of law at issue here fall within the scope of one of the examples cited in Dunsmuir as attracting the correctness standard; it is not a jurisdictional question in the narrow sense, and it does not constitute a question of importance to the legal system as a whole.

[30] In Dunsmuir, the Court pointed to the existence of a privative clause as a “strong indication” of the legislative intent to givedeference to the decision of the administrative tribunal: para. 52. The Act contains no privative clause. Under s. 14.1 of the Act theapplicant has a right of appeal to the Court of Appeal of a decision of the Board on a question of law or jurisdiction. Further, in somecircumstances, the Minister may challenge a decision of the Review Board by judicial review.

The absence of a privative clause signalsthat less deference should be given to the Board’s decisions. [31] The next factor is the Board’s expertise. This requires consideration of the general expertise of the Board and its expertise onthis particular question in relation to this Court’s expertise. The Board is charged with the task of reviewing decisions of the Director inaccordance with the regulations. In this case the Board had to review a decision made by the Director under s. 12(1) of the Act. Thisinvolved

interpretation of the meaning of the terms ‘victim’ and ‘direct result’. The Board does not have any specialized knowledge ofinterpretation of statutes in general over that of this Court. However, it must be remembered that here the Board was interpreting its ownstatute. This factor is not determinative of the standard of review. [32] Finally, one must examine the purpose of the statute and the particular provision. The Act and the Board are not created todetermine rights or entitlements as between parties, nor does the Board balance a number of different complex interests andconsiderations.

Its role lies somewhere in between. The Board makes decisions regarding applicants’ entitlement to compensation andthe extent of such compensation under the Act. As such, some deference is due. [33] Taking these factors into account, and particularly considering that the question involves

interpretation of the Board’s ownstatute, I conclude that the standard of reasonableness applies to a review of the Board's decision.

While it may be that because of theagreement of the parties, the Court of Appeal did not address its mind to the issue of standard of review, I find support for my conclusionin I.(E.). [34] Reasonableness, according to the majority of the Supreme Court in Dunsmuir, requires that deference be accorded to theunderlying decision, which “imports respect for the decision-making process of adjudicative bodies with regard to both the facts and thelaw,” (para. 48) and “implies that courts will give due consideration to the determinations of decision makers” (para. 49).

Minister’s Application - Analysis: [35] The proper approach to statutory

interpretation requires that the words of

an Act be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature:Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services) 2004 SCC 54 , [2004] 3 S.C.R. 152; Calgary (City)v. Alberta (Municipal Government Board) 2008 ABCA 187. [36]

Section 1(l)(

i) of the Act defines “victim” as “a person who is injured or dies as a direct result of

an act or omission describedin s. 12(1). Section 12(1) provides that certain persons may apply to the Director for financial benefits “if the injury or death was thedirect result of

an act or omission that occurred in Alberta and is one of the offences under the Criminal Code (Canada) specified in theregulations”. These two provisions must be read together when considering the meaning of “victim” for the purpose of an applicationfor financial benefits. [37] On behalf of the Minister, it is suggested that s. 2 of

Schedule C of the Regulation must also be considered in interpreting themeaning of “victim” as it is used in s. 12(1). This provision of the Regulation states that “all injuries must be verified and be the directresult of the offence committed against the victim”. [38] The crime in question is the death by homicide of C.J.’s sister. It is common ground that C.J. witnessed this murder as a childof seven and that she suffered serious psychological injuries as a result. [39] In its decision, the Board set out the provisions of both s. 1(l)(

i) and s. 12(1) and emphasized the words “direct result”. It thendetermined that the serious psychological injuries suffered by C.J. in witnessing the murder were a “direct result” of the crimecommitted. The Board noted the definition of “direct cause” set out in Black’s Law Dictionary and found that, as in this definition, therewas no intervening forces between the crime and C.J.’s injuries. The Board also noted the conclusion in the psychologist’s report putinto evidence by C.J. that the difficulties she faced are the result of the trauma she endured witnessing the murder of her sister.

Thepanel then concluded that C.J.’s psychological injuries were suffered as a direct result of the crime.

[ 40 ] The question for review is whether the Legislature intended in s. 12(1) of the Act to include in its definition of ‘victim’ those, like C.J. who did not have the crime committed against them personally but who witnessed a violent crime and were harmed as a result. [ 41 ] On behalf of the Minister, it is argued that the ordinary meaning of the term victim is to be contrasted with the ordinary meaning of the term witness. The victim of a crime is someone against whom the crime was committed. A witness to a crime is someone who is present and sees a crime occur. The Minister argues that the Legislature’s use of the words ‘direct result’ in s. 1 (l)(

i) and s. 12(1) is instructive and strengthens the ordinary meaning of the term victim as contrasted to witness. Further, the Minister argues that the strongest confirmation that the term “victim” refers to the person against whom the offence was committed and not to a witness such as C.J., is found in s. 2 of

Schedule 3 of the Regulation , which expressly says this. It requires that the injuries be “a direct result of the offence committed against the victim”. [ 42 ] On behalf of the Board, it is argued that the Supreme Court has made it clear that statutory

interpretation requires one to go beyond the grammatical and ordinary sense of words in a statutory provision and to consider the total context of the provisions to be interpreted. The Board says that the purpose of the Act is to provide assistance to victims of crime and this is made clear from the principles set out in s. 2 of the Act. The Board argues that the scheme of the Act supports a broad and remedial approach to helping victims of crime and a broad interpretive role for the Board. While the Board acknowledges that the definition of ‘victim’ in s. 1(1)(

i) is more restrictive in terms of applications for benefits than it is in respect to programs for victims, the definition says that a person must suffer injuries as a “direct result” of a crime. It does not say that the crime must be committed against the person who suffers the injury. With respect to the provision set out in s. 2 of

Schedule 3 of the Regulation , relied upon by the Minister as an aid to

interpretation of the statute, the Board says that it is trite law that a regulation cannot amend a statute or go beyond the bounds set by that statute. Minister’s Application - Conclusion: [ 43 ] Both the

interpretation urged upon me by the Minister and that urged by the Board are possible

interpretations of the words in question. However, I have concluded that the

interpretation chosen by the Board is reasonable and accords with the fundamental purpose of the Act and with the words the Legislature actually used. Because the standard of review is one of reasonableness, I have concluded that the Board’s decision was reasonable and should not be disturbed. [ 44 ]

Section 10 of the

Interpretation Act, R.S.A. 2000, c. I-8 requires a court to construe an enactment as remedial and to give it the fair, large and liberal construction and

interpretation that best ensures the attainment of its objects. [ 45 ] From a review of the Act as a whole, it is clear that its objective is to benefit victims. Had the Legislature intended to limit the term victims to those against whom a crime was committed and not to include others whose injuries are a direct result of a crime, they could have said so. They did not. The

interpretation urged by the Minister would require the addition of the words “committed against the victim” after the word “omission” in both s. 12(1) and s. 1 (l)(i). Such a narrow and restrictive reading of the Act is not in accordance with the objective of the Act and is not required by the words used. While I have noted that s. 2,

Schedule C of the Regulation does appear to import the limitation urged by the Minister by the words used, that provision cannot amend the terms of the Act itself. The wording of a Regulation can be helpful in construing the meaning of a statutory provision, as the Supreme Court has pointed out in Monsanto at para. 35. However, where the Legislature uses different words in the Act from those found in the Regulation, the presumption is that they intended a different meaning. Further, the Act and Regulation are not “closely meshed” on this issue as the purpose of s. 12 of the Act is to define who is entitled to benefits. The purpose of

Schedule 3 of the Regulation is quite different. It provides specific guidance respecting how much compensation is to be awarded for various injuries. It does not deal with the issue of entitlement. The wording of the Regulation does not assist in the

interpretation of s. 12(1) and s. 1 (l)(

i) of the Act. [ 46 ] Accordingly, I have concluded that the Board’s

interpretation of the word ‘victim’ is reasonable and its decision should not be disturbed. C.J.’s Application – Facts: [ 47 ] C.J. made application under s. 12(1) (

b) of the Act for a death benefit as a consequence of the death of her infant sister at the hand’s of that child’s foster mother. This application was initially denied by the Director on August 13, 2009, on the basis that it was not made within two years of “the date of injury or death or within two years from the date when the victim becomes aware of or knows or

ought to know the nature of the injuries and recognizes the effects of the injuries” as required by s. 12(2) of the Act. C.J. applied to the Board for a review of that decision. On September 10, 2010, the Board concluded that C.J. had suffered psychological injuries as a result of witnessing her sister’s murder and that it is unlikely that even now she recognizes the extent of those injuries.

They concluded therefore that C.J. did not possess the psychological capability to make an application for benefits until recently and therefore rescinded the Director’s decision and directed the Director to reconsider C.J.’s application. [ 48 ] The Director did reconsider the application as directed. On October 26, 2010, it awarded the full death benefit not to C.J. as the applicant but instead to the father of C.J. of the dead infant sister (“Director’s Second Decision”). On November 2, 2010, C.J. requested that the Board review the Director’s Second Decision.

On December 10, 2010, the Chair of the Board wrote to the Applicant dismissing her request for review. C.J. challenges this decision in C.J.’s Application. C.J.’s Application - Legislative Framework: [ 49 ] Section 12(1)(

b) sets out who may apply for financial benefits on the death of a victim of crime. It reads as follows: Subject to subsection (4), the following persons may, in accordance with the regulations, apply to the Director for financial benefits if the injury to or death of a victim was the direct result of

an act or omission that occurred in Alberta and is one of the offences under the Criminal Code (Canada) specified in the regulations: (a) ...; (

b) in respect of the victim's death, ... if the victim dies leaving no dependants, (

i) a spouse or adult interdependent partner, parent, child, sister or brother of the victim who is not a dependant, or (ii) any other person who in the opinion of the Director is eligible for financial benefits . [ 50 ] Under s. 13(3) of the Act , the Director may dismiss an application for benefits: (

a) if the Director determines that the applicant or victim is not eligible under

section 12 , (

b) if, in the opinion of the Director, the applicant or victim (

i) did not fully cooperate with any investigation into the events that resulted in the injury or death of the victim, or (ii) did not provide information required under subsection (2)(a); or (

c) for any other reason provided for in the regulations.

[ 51 ]

Section 8 of the Regulation sets out the following:

(7) Regardless of the number of eligible recipients of financial benefits that exist in respect of a victim’s death, the maximum amount payable in aggregate to all of the recipients as a death benefit is $12,500 in total.

(8) Financial benefits described in subsection (4), (6.1), or (7) may be paid to the applicant or, at the discretion of the Director, to other eligible persons. [ 52 ] When an applicant applies to the Board under s. 14 of the Act for a review of the Director’s decision, the Chair of the Board must evaluate the application pursuant to s. 14(3) of the Act:

(3) On receipt of an application for review, the chair of the Review Board or a member designated by the chair must evaluate the application to determine whether there are grounds for the review or if the application is frivolous or vexatious, and if the chair or the designate is of the opinion that there are no grounds or that the application is frivolous or vexatious, the chair or the designate may dismiss the application.

C.J.’s Application - Position of the Parties: [ 53 ] C.J.’s position was that the Chair had a duty of procedural fairness to her which required, as a minimum, that she be provided meaningful reasons for the decision. She submits further that the Chair’s decision should be reviewed on a standard of correctness and the Chair’s decision was not correct. [ 54 ] The Board acknowledges that the Chair owed some degree of procedural fairness to C.J. and indicates that their position was that the standard of review is one of reasonableness.

However, counsel for the Board considered it inappropriate to take any position with respect to whether the Chair had met its duty of procedural fairness or whether the Director’s decision was otherwise reasonable. [ 55 ] The Minister took no position in respect to C.J.’s Application. C.J.’s Application - Standard of Review: [ 56 ] The analysis in Dunsmuir v. New Brunswick does not apply to issues of procedural fairness or natural justice: Goold v. Alberta (Office of the Children’s Advocate) 2011 ABCA 63 . [ 57 ] The level of fairness required is determined by considering a number of factors including:

a) the nature of the decision being made, and specifically whether it is quasi-judicial in nature

b) the nature of the statutory scheme;

c) the importance of the decision to the person affected;

d) the legitimate expectations of the person affected, and

e) the procedure adopted by the decision maker itself: Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at paras. 23-27. [58] The Chair’s decision was administrative. However, it was important to C.J. as the applicant and was final in nature. [59] The statutory scheme set out in s. 12(1)(

b) permits an application for a benefit to be made by a number of different relatives ofa victim who has died, including a parent and a sister. Section 8(8) of the Regulation permits the Director to pay benefits to the applicantor at the Director’s discretion to other eligible persons. Under s. 8(7) of the Regulation, the maximum death benefit is $12,500 but fromthe wording of this provision, it appears that the Director has the discretion to divide the benefit among a number of eligible recipients.

No where in the Act is any hierarchy mandated in terms of which relative is to have priority in the event of multiple applications. [60] I conclude that C.J. was entitled to a moderate degree of procedural fairness and that C.J. had a legitimate expectation that shewould receive meaningful reasons for the Director’s decision. I conclude further that she was entitled to these. This is one of thosecircumstances outlined in Baker v. Canada (Minister of Citizenship and Immigration) (SCC), [1999] 2 S.C.R. 817 inwhich the duty of procedural fairness requires that reasons be provided.

The decision was important to C.J. and it would be unfair to hernot to be told why the result was reached. The Chair’s stated reason for denying her request for review was that the entire death benefithad already been paid to C.J.’s father and there was, therefore, no further funds available. However, that is not a reason at all but simplya declaration of the result of the decision made by the Director. [61] The decision made by the Chair is also reviewable on the standard as established by a Dunsmuir analysis.

I have outlined thesteps to be taken in this analysis above in respect to the Minister’s Application and will not repeat them here. [62] Counsel were unable to direct me to any case law which has already set out the proper standard of review and so an analysisof the Dunsmuir factors is indicated. On an application of these factors, I have concluded that the standard of review is one ofreasonableness. There is no statutory appeal available from a decision of the Chair.

The Chair is an experienced member of the Boardand is experienced as well, in his role as gatekeeper in reviewing applications for review to the Board itself. The statute grants the Chairdiscretion in s. 14(3). All of these factors suggest a standard of reasonableness. C.J.’s Application - Analysis: [63] The Director failed to provide any intelligible reasons for the decision he made not to allow C.J.’s request for a review of thedecision of the Director to be taken to the Board. C.J. is the sister of the deceased child and so, by the terms of the Act, itself, has a rightto apply for the death benefit.

While the Director is given the discretion by s. 8(8) of the Regulation to pay out to someone other than anapplicant, that discretion cannot be exercised arbitrarily. C.J.’s Application - Conclusion: [64] Because of the absence of intelligible reasons the Chair’s decision cannot be reasonable because no supportable justificationwas provided. The Chair’s decision is rescinded and the Chair is directed to review the October 26, 2010 decision of the Director and toprovide reasons for the decision the Chair makes. Heard on the 15th day of March, 2011.

Dated at the City of Edmonton, Alberta this 24th day of March, 2011.

D.C. Read J.C.Q.B.A. Appearances: Sean McDonough Legal Services Division, Civil Law for the Appellants David N. Jardine Shores Jardine LLP for the Criminal Injuries Review Board C.J. was unrepresented