) ) KATALIN DEKANY Appellant – v. –, 2013 ONSC 6794

CITATION : Dekany v. Criminal Injuries Compensation Board, 2013 ONSC 6794 DIVISIONAL COURT FILE NO.: 239/13 DATE: 20131114 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL, SACHS AND WARKENTIN JJ. BETWEEN: ) ) KATALIN DEKANY Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent )) )) )) )) )) In Person David Fine , for the Respondent ) ) HEARD: October 24, 2013 Himel J. [ 1 ] The appellant, Katalin Dekany, appeals the order of the Criminal Injuries Compensation Board (the “Board”) dated April 10, 2013.

In that decision, the Board declined to award ongoing compensation for loss of income and, instead, ordered a fixed amount of $5,000 towards her loss of earnings and $1,200 for future therapy. Background [ 2 ] The appellant was the victim of multiple incidents of physical and emotional abuse caused by her former husband during the years 1987-2008. During an assault in October 2008, she hit her head and fell on the floor which resulted in lacerations that required stitches and medical treatment.

Her former husband was charged and convicted of assault for an incident in 1988, was convicted of assault for an incident in 2001 and was convicted of an assault bodily harm charge for the October 7, 2008 incident. [ 3 ] Ms. Dekany applied to the Board for compensation under the Compensation of Victims of Crime Act, R.S.O. 1990, c. C-24 ("the Act"). Following a hearing, the Board rendered a decision on January 20, 2011 in which it found that the appellant had been a victim of assaults during the marriage. The appellant presented a report of Dr.

Damus who diagnosed her with depression and Post Traumatic Stress Disorder. The CICB awarded her $6,000 for pain and suffering and $1,200 for future counselling expenses. It found that she suffered symptoms of Post Traumatic Stress Disorder but that she had not established on a balance of probabilities that all her physical complaints (headaches, scoliosis and arthritis) were caused by the assaults. It denied compensation for chiropractic treatments, massage therapy and physiotherapy. She claimed she was not able to work since October 2008 but the Board denied the loss of income claim.

The Board determined that, in the absence of a firm offer of employment or contracts in place, it could not be said that the loss of income was as a result of the injuries sustained as a direct result of the assaults. It said that her claim for loss of income was "purely speculative". [ 4 ] Ms. Dekany appealed to the Divisional Court which held that the Board did not err in denying the medical treatments or finding that she had not established that her permanent injuries resulted from the assaults.

The court did find that the Board erred in denying her loss of income claim based solely on a policy that did not consider the possibility that applicants, who are regularly but casually employed, may be able to present evidence of past earnings to establish future earnings that could have been anticipated but were affected by the injuries. It held the Board fettered its discretion by not considering the claim because she was not employed and did not have a firm offer at the time of the injury.

The court remitted the matter to the Board to decide whether she could establish some loss of income claim despite the absence of a confirmed written contract. [ 5 ] The matter was heard by a newly constituted Board which released its decision on April 10, 2013. The evidence at the second hearing

[ 6 ] The appellant testified at the hearing that she had employment income from contract teaching and self-employed income from consulting and private tutoring. In addition to the tax returns produced at the first hearing, she presented the Board with Statements of Business Activities and Tax Summaries. Her net income in 2006 was a total of $22,484, in 2007, her total net income was $14,981, in 2008, her employment income was $3,982 and her gross business income was $17,200.

In the years following the incident, she had no employment income and income from consulting and tutorials was negligible. [ 7 ] She submitted a letter to the Board from her family physician stating that she has a history of physical and emotional injuries and that she is not suitable for employment. She also submitted a psychiatric assessment of Dr. Karen Abrams, which outlined the diagnosis of major depressive disorder and Post Traumatic Stress Disorder. The report listed her symptoms and how they affect her daily activities and her ability to function at a job.

It also outlined psychological stressors: financial difficulties, litigation with her ex-husband and a strained relationship with her son. The doctor gave the opinion that she suffers from serious and permanent impairment resulting from the trauma. [ 8 ] The appellant testified that she has not been able to work since the last incident in October 2008 because of the psychological injuries she has suffered. She has problems with concentration, memory and stamina. She attributes her problems largely to her inability to sleep. She has not been willing to take medication as she is concerned that it is addictive.

While she was authorized $1,200 for therapy, she did not utilize it. She has returned to school and is hopeful she will get work as a paralegal when she graduates. The Decision of the Board [ 9 ] The Board held that it was not satisfied that the appellant was unable to work solely because of the injuries caused by the assaults. It found that the headaches from the October 7, 2008 assault were not debilitating or disabling. The Board concluded that there was insufficient evidence to find that her present physical conditions were caused by the assaults.

The Board held there was medical evidence regarding other psychological stressors such as financial difficulties and ongoing litigation with her former husband that were contributing to her condition. Thus, the Board found that the psychological symptoms were only partly due to the assaults. It held that they were likely also the result of years of emotional abuse which is in itself not criminal activity.

The CICB noted that she has made an effort to pursue her course but has not mitigated her injuries as she has not taken steps to obtain therapy or medication to address psychological problems. [ 10 ] The Board ordered a further $5,000 for loss of income, an amount it deemed reasonable because of the evidence that some degree of psychological injury can be attributed to the crimes of violence and maintained the $1,200 for future therapy.

Positions of the parties [ 11 ] The appellant takes the position that the Board erred in attributing her psychological condition and inability to work to factors other than being the victim of violent crime. She also disputes that she did not mitigate. She argues that the evidence shows that her medical conditions are directly related to the October 7, 2008 injury and that the evidence was that she had income up until the injury and no income after it.

She submits that the Board made findings that are not consistent with the findings of the Board at the first hearing and not consistent with the evidence concerning the nature of the injuries sustained during and as a result of the assault in 2008. She says the Board erred in its causation analysis regarding the consequences of the assault and in failing to take into account her vulnerable state as a victim of abuse and applying a “thin skull victim” approach.

She submits that the Board erred in the exercise of its discretion in the award for loss of income by limiting it and not awarding ongoing periodic payments. She asks that the decision be set aside and the court substitute its view and grant $1,000 per month retroactive to the date of injury or at least on a future loss of income basis. [ 12 ] Counsel for the Board argues that the Board reasonably concluded that the appellant was entitled to a limited amount for loss of income. The Board found she suffered other conditions as well as other stressors not related to the physical abuse.

A loss of income award under s. 7(1)(

b) is discretionary. The appellant cannot be compensated for injuries outside the scope of the Act . Counsel asks that the appeal be dismissed. Analysis [ 13 ] An appeal lies to the Divisional Court under s. 23 of the Act from any decision of the CICB on any question of law. [ 14 ] Where a tribunal is interpreting and applying its home statute, the standard of review is one of reasonableness.

The standard of correctness applies when the question is one of true jurisdiction or of central importance to the legal system as a whole and outside the adjudicator's specialized expertise: see Information and Privacy Commissioner v. Alberta Teachers’ Association , 2011 SCC 61 at paras. 34 and 39 . Here, the CICB is interpreting its home statue on a claim of loss of income. The matter does not have implications for the legal system as a whole nor is it outside the Board's area of expertise: see Tatti v. Criminal Injuries Compensation Board , 2013 ONSC 4320 (Div.

Ct.). [ 15 ] The issue in this case is whether the CICB fettered its discretion or committed an error of law when it awarded $5,000 for loss of income instead of a higher award or periodic ongoing income. The question is whether the Board’s decision, in attributing the appellant's psychological injuries to factors in addition to being a victim of violent crime, was reasonable. Decision

[16] Many of the issues raised by the Appellant did not raise questions of law and thus, are not reviewable by this court. It is notour task to reweigh evidence. Furthermore, we disagree with the appellant’s submission that the findings of the Board were inconsistentwith the findings of the Board at the first hearing. Both hearing panels accepted as a fact that there were other stressors in the appellant’slife that caused her emotional problems and that the appellant suffered from physical ailments that were unrelated to the physical assaultsthat her former husband committed.

The first hearing panel made no findings about the cause of the appellant’s inability to work. [17] The appellant did raise two issues of law in oral argument only – namely that the Board failed to engage in the appropriatelegal test for causation, the “but for” test, and that the Board erred in law in failing to apply the “thin skull” rule when assessingcompensation.

In dealing with these arguments it is important to remember that the Board is a lay tribunal and thus, as the DivisionalCourt noted when it previously considered this case, their reasons “are not to be subjected to the same scrutiny as those of one made upof lawyers” (Dekany v. Criminal Injuries Compensation Board, 2011 ONSC 5787 at para. 11). [18] With respect to the submission about the failure to engage in the correct causation analysis, the Board did find that thecriminal acts committed by the appellant’s former husband were a cause of her inability to work.

If they had not done so, they would nothave awarded any damages for loss of income. [19] Having established a causative link, it was then up to the Board to determine the extent of the damages that were caused bythe criminal acts in question. In this regard, the appellant argues that the Board erred in law in failing to apply the “thin skull” rule. Asexplained by the Supreme Court of Canada in Athey v. Leonati [1996] 3 S.C.R. at p. 473, the “thin skull” rule “makes the tortfeasorliable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition.

The tortfeasor must takehis or her victim as the tortfeasor finds the victim, and is therefore liable even if the plaintiff’s losses are more dramatic than they wouldbe for the average person.” [20] According to the appellant, applying this rule, even if her husband’s emotional abuse contributed to her psychologicalcondition and the last physical assault was not as serious as some, she should be fully compensated for her inability to work because itwas the last physical assault that rendered her unable to work and it did so because she was already in a psychologically vulnerable state.This is demonstrated by the fact that prior to the last physical assault she had been working. [21] The “thin skull” rule has a companion known as the “crumbling skull” doctrine.

Under this doctrine “if there is a measurablerisk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence,then this can be taken into account” (Ibid, supra). Reading the reasons as a whole and in light of the record before it, the Boardreasonably concluded that stressors that existed in the appellant’s life before and after the physical assaults contributed to her inability towork. Further, it was not satisfied that the last physical assault was the “straw” that rendered the appellant unable to work on a long termbasis.

In its view, other factors (such as the the consequences of the breakdown of her marriage and the relationship with her son)contributed to her emotional state. In other words, regardless of whether the physical assaults had occurred, the appellant would havebeen in an emotionally vulnerable state that would have affected her abitlity to work. [22] Section 7(1)(

b) provides that compensation may be awarded for “pecuniary loss incurred by the victim as a result of total orpartial disability affecting the victim’s capacity for work”. An award shall not exceed $25,000, and in the case of periodic awards theamount is not to exceed $1,000 per month. A loss of income claim under s. 7(1)(

b) is discretionary. In addition to not being satisfied thatthe injuries alleged were tied solely to the physical abuse by her ex-husband as opposed to other stressors in her life, the Board found thatthe fact that the appellant was not attempting to work, that she refused to take medication or had not pursued counselling on a regularbasis were relevant factors in determining the quantum of the loss of income claim.

These are considerations the Board was entitled totake into account in the exercise of its discretion. [23] The outcome of imposing a limit of $5,000 for loss of income and maintaining the $1,200 for therapy is a result that "fallswithin a range of possible, acceptable outcomes which are defensible in respect of the facts and law.": see Dunsmuir v. New Brunswick,2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 47. [24] For these reasons, the appeal of the decision of the Board dated April 10, 2013 is dismissed. As the Board submitted that itwould not seek costs if successful, we make no order as to costs. Himel J.

Sachs J.

Warkentin J. Released: November 14, 2013 CITATION : Dekany v. Criminal Injuries Compensation Board, 2013 ONSC 6794 DIVISIONAL COURT FILE NO.: 239/13 DATE: 20131114 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL, SACHS AND WARKENTIN JJ. BETWEEN: KATALIN DEKANY Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent REASONS FOR JUDGMENT Himel J. Released: November 14, 2013