Fuchs v. Ontario (Criminal Injuries Compensation Board), 2013 ONSC 667

CITATION: Fuchs v. Ontario (Criminal Injuries Compensation Board), 2013 ONSC 667 DIVISIONAL COURT FILE NO.: 473/12 DATE: 20130131 SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT) RE: JEFFERY FUCHS v. ONTARIO (CRIMINAL INJURIES COMPENSATION BOARD) BEFORE: Justices Kent, Swinton, and Harvison Young COUNSEL: Alison Craig and B.

Eberdt , for the Appellant David Fine , for the Respondent HEARD AT TORONTO: January 28, 2013 E N D O R S E M E N T Overview [ 1 ] The appellant appeals from a decision of the Criminal Injuries Compensation Board (“the Board”) dated April 19, 2012 which granted him compensation of $1,000.00 for pain and suffering. [ 2 ] The appellant was injured in a fight that started in a bar and continued in an alley outside. He was also involved in a struggle with police officers as they arrived on scene. He made a claim under the Compensation for Victims of Crime Act , R.S.O. 1990, c.

C.24 (“the Act”) for compensation for injuries caused by the assaillants and by the police officers. [ 3 ] An appeal lies to this Court only on a question of law ( s. 23 of the Act ). It is agreed that the standard of review is correctness. The Application of s. 17(1) [ 4 ] The Board held that the appellant was a victim of crime as a result of the fight (“Incident # 1”).

In determining the amount of compensation to be awarded, the Board applied s. 17(1) of the Act , which provides: In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death. [ 5 ] In applying this provision, the Board must have regard to relevant circumstances.

In cases where the claimant has engaged in criminal activity, whether at the time of the incident or in the past, the Board is required to consider whether there is a nexus between that criminal activity and the injury sustained. If so, the Board must also consider the proportionality between the claimant’s contribution and the severity of the injuries ( Mark v. Ontario (Criminal Injuries Compensation Board) , 2010 ONSC 6540 (Div. Ct.) at paras. 25-26 ). [ 6 ] The Board in the present case made no mention of these legal principles in its reasons. It noted that there was no evidence

that the appellant started the altercation. However, it stated that he had “an extensive criminal record, was known to associate with gang members, and on this occasion, he was attending a bar known for drug activity” (p. 13 of the Appeal Book). The Board continued, “He engaged in a high risk criminal lifestyle that frequently involved violence and the use of weapons.

To this extent the Panel finds that the Applicant has some responsibility for the injuries incurred.” [ 7 ] The Board made no finding that the appellant was at the bar to engage in criminal activity, such as drug trafficking, and there was no evidence to that effect. According to the appellant’s evidence, he was there to celebrate his girlfriend’s brithday. There was no evidence and no finding that he knew the bar had a reputation for drug trafficking, and there was no evidence that he was carrying a weapon that night.

While a police officer said that the appellant was known to associate with gangs, the appellant denied this. [ 8 ] Thus, the Board failed to identify any nexus between the appellant’s conduct on the night in question (or his past conduct) and the assault. Moreover, it failed to consider proportionality. In other words, it failed to carry out the necessary legal analysis for the application of s. 17(1) and, therefore, erred in law in finding that s. 17(1) applied. [ 9 ] Before dealing with the appropriate remedy, we will address the other grounds of appeal.

The Application of s. 17(2) [ 10 ] The Board also applied s. 17(2) of the Act , which provides: The Board may, in its discretion, refuse to make an order for compensation or order a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency. [ 11 ] The Board exercised its discretion to reduce the appellant’s compensation with respect to Incident # 1 because he failed to cooperate with police in their investigation.

There was evidence to support the Board’s conclusion that the appellant knew at least some of his assaillants’ names and that he did not cooperate with police officers. The Findings Respecting Incident # 2 [ 12 ] The Board concluded that the appellant was not a victim of crime with respect to Incident # 2, the alleged beating by police officers after he was handcuffed.

While he argues that the Board erred in failing to decide what happened after he was handcuffed, and it should have accepted the evidence of the independent witness, there was evidence on which the Board could conclude that the appellant was not a victim of a crime in this incident – in particular, the evidence of his former girlfriend and the police officers.

Reasonable Apprehension of Bias [ 13 ] The appellant argued that there was a reasonable apprehension of bias on the part of the Board panel because of comments made in the log of the case management system respecting the need for security at the hearing and because notes arising from an earlier adjournment said he had a “crusade” against the police. [ 14 ] The appellant did not prove that the comments were made by either of the members of the Board panel who actually heard his appeal. [ 15 ] In our view, the appellant has failed to show that the Board members who heard his application approached the case with a closed mind.

Indeed, they found him to be a victim of crime because of Incident # 1 and awarded him compensation. Moreover, the fact that an administrative tribunal determines that there may be a need for security at a hearing is not evidence of a pre-determination of the case by members of the tribunal. Conclusion [ 16 ] The question that remains is the appropriate remedy, given the error in applying s. 17(1) of the Act . The Board argues that the appeal should be dismissed, as the error had no effect on the award of compensation.

The Board argues that there was a discretion to reduce the award for pain and suffering either because of s. 17(1) or because of s. 17(2) , the failure to cooperate with police. Even if the Board erred in applying s. 17(1), the Board was entitled to reduce the award under s. 17(2) . [ 17 ] The problem with this argument lies, once again, in the Board’s reasons. The Board awarded $1,000 in compensation for pain and suffering and then stated, “This award would have been higher but for the considerations of sections 17(1) and (2) ” (emphasis added). The Board had analyzed s. 17(1) and 17(2) separately.

Therefore, it is not clear from the reasons whether it would have reached the same decision about the amount of compensation had it properly anaylzed s. 17(1). For example, without the necessary nexus between the appellant’s conduct and his injury, s. 17(1) does not apply. It is not clear that the Board would have reduced the compensation to the same degree if s. 17(1) was not at play. [ 18 ] In the interests of fairness to the appellant, the appeal must be allowed because of the error in the application of s. 17(1).

We would not remit the issue of the application of s. 17(1) to the Board, as was done in Mark , above, because the evidence before the Board does not support the finding of a nexus between the appellant’s conduct and his injuries. However, the matter is remitted to the Board to properly consider the amount of compensation to be awarded for Incident # 1 based upon its finding with respect to s. 17(2) . [ 19 ] The parties have agreed that there will be no costs of the appeal.

_____________________________ Kent J. _____________________________ Swinton J. _____________________________ Harvison Young J. Released: January 31, 2013