Johnson v. Alberta (Criminal Injuries Review Board ), 2012 ABQB 578

Court of Queen ’ s Bench of Alberta Citation: Johnson v. Alberta (Criminal Injuries Review Board ), 2012 ABQB 578 Date: 20120924 Docket: 1214 00106 Registry: St. Paul Between: Stewart Douglas Johnson Applicant - and - Alberta (Criminal Injuries Review Board) Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________ I. Introduction................................................................................................................ Page: 2 II.

Background................................................................................................................ Page: 2 III. The Statutory Framework............................................................................................ Page: 2 Application for Benefits.................................................................................. Page: 2 The Review: Section 14(3) of the VOC Act.................................................... Page: 4 IV. Standard of Review..................................................................................................... Page: 5

V. The Decision of the Vice Chair................................................................................... Page: 6 VI. Analysis...................................................................................................................... Page: 7 VII. Conclusion.................................................................................................................. Page: 7 I. Introduction [ 1 ] This is a judicial review application.

The Applicant applies to review a decision of the Vice Chair of the Criminal Injuries Review Board, dated September 27, 2011 relating to his application for benefits. II.

Background [ 2 ] The background and statutory framework is taken from the brief of the Respondent. [ 3 ] On February 16, 2011 the Victims of Crime Financial Benefits Program ("VCFB") received the Applicant's application for financial benefits. [ 4 ] On March 3, 2011, the Designate of the Director of the Victims of Crime Financial Benefits Program (the "Director") wrote to the Applicant denying his application for financial benefits because it was a duplicate of three previous applications. [ 5 ] On May 10, 2011, under s. 14 of the Victims of Crime Act , the Applicant applied to the Criminal Injuries Review Board for a review of the Director's decision in what is described as "VFB file #27119-VFB".

The Board opened a file, 27986-CIRB. [ 6 ] On September 27, 2011 the Vice Chair of the Board wrote to the Applicant dismissing his Request for Review. It is the decision ( “ the decision ” ) of the Vice Chair that the Applicant is challenging in this judicial review. III. The Statutory Framework [ 7 ] The Respondent, the Criminal Injuries Review Board, was established and is governed by the Victims of Crime Act (the " VOC Act"), and by the Victims of Crime Regulation (the " VOC Regulation").

Application for Benefits [ 8 ] The process under the legislation begins with an applicant making an application for financial benefits to the Director of the Victims of Crime Financial Benefits Program.

[ 9 ] As directed by the VOC Act, the Director of the VCFB must consider the application and determine the applicant's eligibility under

section 12 of the VOC Act, which includes: 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: (

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.

(2) An application under subsection (1) (

a) must be made within 2 years from the date of the injury or death or within 2 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; and (

b) may be made only with respect to

an act or omission that was reported, within a reasonable time after it happened, to the appropriate law enforcement authority. [ 10 ] The Director may dismiss an application for financial benefits under section 13(3) of the VOC Act: 13(3) The Director may dismiss an application made under subsection (1) (

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

section 12, ... [ 11 ] Under the VOC Act a decision of the Director is not final and an applicant can apply to the Board under

section 14 of the VOC Act for a review of the Director's decision. The Applicant applied for a review on May 10, 2011.

The Review: Section 14(3) of the VOC Act [ 12 ] Every application for a review of a Director's decision must be screened through section 14(3): 14(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 vexations, the chair or the designate may dismiss the application. [ 13 ] In the Applicant's case, the Vice Chair made the decision regarding the Applicant's application for a review under section 14(3). 7(4) In the absence or incapacity of the chair, the vice-chair of the Review Board may act and exercise all of the powers of the chair. [ 14 ] In the cases of S.M. v.

Criminal Injuries Review Board, 2008 ABCA 332 , [2008] AJ No. 1080 and Ma v. Criminal Injuries Review Board , 2011 ABQB 300 , the Court of Appeal and Court of Queen's Bench, respectively, discussed the gatekeeping role of the Chair under section 14(3) of the VOC Act. [ 15 ] At para. 6 of the S.M. v. Criminal Injuries Review Board, 2008 ABCA 332 , [2008] AJ No. 1080 , Mr. Justice Ritter of the Alberta Court of Appeal stated: 6 No decision of the Board underlies this appeal.

The decision under appeal is that of its chair, who acts as a gatekeeper, vetting reconsideration applications that are apparently bereft of any merit. [ 16 ] In Ma v. Alberta (Criminal Injuries Review Board) , supra , Mr. Justice Burrows described the role of the Chair as follows: 25 Under this

section the Chair is a gatekeeper. He is to assess "whether there are grounds for review". The

section says nothing about the test he is to apply in making that assessment. The function is perhaps similar to that of a court when it decides whether a pleading should be struck for not disclosing a cause of action or a defence, or whether a default judgment should be set aside, or whether leave to appeal should be granted, or whether a jury should be directed to acquit an accused person at the close of the Crown's case.

It is an assessment of whether there are grounds worthy of consideration by the Review Board, of whether the applicant has raised in his grounds for review something which could conceivably move the Review Board to rescind or vary the Director's decision, or whether the suggested grounds for review are so obviously without merit that the application for review should be dismissed summarily. 26 A distinction must be made between a determination as to whether the grounds for review are worthy of consideration by the Review Board, which is the role of the Chair under s. 14(3), and a determination as to whether the grounds for review justify rescinding or varying the decision of the Director, which is the role of the Review Board.

IV. Standard of Review [ 17 ] The Respondent submits and I agree, that the decision of the Vice Chair is to be tested on the reasonableness standard of review. I come to this conclusion for two reasons.

[ 18 ] I adopt the analysis and conclusions in two other cases involving judicial review of a decision under section 14(3) of the VOC Act where this Court found the standard of review was reasonableness: Alberta (Solicitor General) v. CJ , 2011 ABQB 192 and Ma. v. Alberta (Criminal Injuries Review Board) , 2011 ABQB 300 . [ 19 ] I note also that the Supreme Court has held that the standard of review for an administrative tribunal interpreting its home stature should be presumed to be reasonableness. Information and Privacy Commissioner v.

Alberta Teachers ’ Association , 2011 SCC 61 at paras. 34 - 39 . [ 20 ] The reasonableness standard of review is defined in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] SCJ No. 9 at para. 47 : 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. V.

The Decision of the Vice Chair [ 21 ] The Vice Chair provided reasons for his decision which included the following: . . . Upon review of the Director's three decisions on the Director's file dated October 12, 2010, September 13, 2010 and February 14, 2005; Mr. Johnson's application; and having considered his Request for Review, I conclude that there are no grounds for a review of the Director's decision and there is no merit in the request. . . . The Director received Mr.

Johnson's application on February 16, 2011, above, consisting of approximately seventeen pages wherein each address identical issues regarding his contact with the RCMP police, the Edmonton Police Service, the crown prosecutors, security police in court, and perceived negative treatment of him while in court. The key points he submits were previously dealt with in each or all of the Director's previous three decisions, as indicated above. . . . The Director's focus on the duplication of applications is reasonable and acceptable. As noted in file #27119-VFB above, Mr.

Johnson has submitted three applications subsequent to his application in 2004. His submissions in all of his applications addressed, among other events, a recall of his being shot in 1972. . . .

I consider Mr. Johnson's submissions to be convoluted, contradictory and inconsistent and conclude that his submissions are not only duplicates; they are frivolous and vexatious. In my view, this is a proper case in which to invoke section 14(3), above, in that there are no grounds for the review of the director's decision dated March 3, 2011. VI. Analysis [ 22 ] In

summary, the Vice Chair provided the following reasons for dismissing the Applicants request for a review of the Director ’ s decision :

(1) Mr. Johnson ’ s application of February 16, 2011 for financial benefits was a duplicate of previous applications. Three applications related to the 1972 incident had previously been submitted and dealt with by decisions of the Director;

(2) The submissions of the applicant were convoluted, contradictory and inconsistent.

(3) The submissions of the applicant were frivolous and vexatious. [ 23 ] The reasons of the Vice-Chair are transparent and intelligible. They provide a supportable justification for the decision. [ 24 ] In addition the decision of the Vice -Chair falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. VII. Conclusion [ 25 ] The decision of the Vice-Chair is reasonable. The application for judicial review is dismissed. Heard on the 14 th day of September, 2012 at St. Paul, Alberta Dated at the City of Edmonton, Alberta this 21 st day of September, 2012.

J.J. Gill J.C.Q.B.A. Appearances: Mr. Stewart Douglas Johnson Appeared on his own behalf Ms. Fiona N. Vance (Shores Jardine LLP) for the Respondent