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Criminal Injuries Compensation (Ontario)
Legal Guide

Ch.10 Evidence (01 January 2015)

  1. Overview
  2. Board Rule 9.2: "Hearsay"
  3. Board May Limit Evidence
  4. The Role of Parties in Evidence Presentation
  5. The Role of Participants in Evidence Presentation
  6. Order of Presentation of Evidence
  7. Evidence of Crime
    (a) Overview
    (b) Conviction is Proof of Crime, But Not Required
    (c) Adjournment Pending Criminal Result
    (d) "Not Criminally Responsible"
  8. Witnesses
  9. Witness Protection
  10. Board Role in Evidence Collection
    (a) Overview
    (b) Board Policy
    (c) Assisting Applicants
    . Evidence of Crime
    . Evidence of Injury
    (d) Problems
  11. Disclosure of Evidence
    (a) Overview
    (b) Issue Disclosure
    (c) Secret Evidence
    (d) Pre-Hearing Document Disclosure
    (e) Written Hearing Disclosure
  12. Filing of Evidence
    (a) Overview
    (b) Board Policy
    (c) Manner of Filing
    (d) On-Going Filing Duties
  13. Return of Evidence

1. Overview

Like most procedural issues related to the CICB, understanding applicable evidence principles requires canvassing and integrating several legal sources. These include the Compensation for Victims of Crime Act (CVCA), the Statutory Powers Procedures Act (SPPA), the Board's Rules of Procedure issued authority of s.25.1 of the Statutory Powers Procedures Act (the "Rules"), and the common law of natural justice.

The basics however are that the Board is governed by SPPA evidence law, which themselves modify and relax basic civil evidence law. Both SPPA and basic civil evidence law are discussed in the chapter "Evidence", in the SPPA legal guide. This chapter should be thoroughly reviewed by anyone seriously engaged with a CVCA application, as it contains by far the bulk of the evidence rules and principles that apply to Board proceedings:

Administrative Law (Ontario)(SPPA): Ch.6: Evidence

While the Board may play an interventionist role in the actual conduct of a proceeding it is useful to review basic administrative oral hearing procedure. This is discussed in the SPPA legal guide in the chapter "Hearings". This also links to parts of the Small Claims Court legal guide on the same topic.

Administrative Law (Ontario)(SPPA): Ch.4: Hearings

There are also some CICB-specific Board Rules established regarding the order of presentation of evidence, the roles of parties and "participants" in theevidence stages, evidence of crime and some other minor issues. Rules 9.2 and 10 which purport to allow the Board broad authority to admit and exclude evidence (respectively) are critiqued.

The issue of public access to hearings and publication bans on evidence is discussed in the chapter "Hearings".

These - and some other important issues - are all discussed in this chapter. I reiterate the importance of a general review of evidence principles provided in the above links.

2. Board Rule 9.2: "Hearsay"

Board Rule 9.2 - entitled "Hearsay" - reads:
The Board may admit any evidence, whether or not admissible in a court of law, relevant to the subject-matter of the proceeding.
This wording borrows from s.15(1) of the SPPA which is discussed at length in the chapter "Evidence" in that legal guide (linked below). That section - like Rule 9.2 - embodies a GENERAL relaxation of evidence rules - NOT just a relaxation of hearsay rules.

Administrative Law (Ontario)(SPPA): Ch.6: Evidence

However, s.15(2) of the SPPA limits this relaxation by maintaining the inadmissibility of privileged matters and matters inadmissible under any statute. While Rule 9.2 does not embody these limitations it should be read as including them since the CICB is governed by all of s.15 of the SPPA, which overrides the Board Rules.

This is another instance of the Board's Rules over-reaching their legal entitlement or it could just be inadequate legal drafting. See the discussion of "Controlling Process" in the chapter "Questionable Board Practices: Board Rules".

3. Board May Limit Evidence

Board Rule 10 provides that the Board may make orders or directions, including those "limiting the extent to which, or the purposes for which any oral testimony, documents or things may be used in evidence" - to prevent "abuse of its processes".

Once again we see the Board Rules merging wording draw from disparate parts of the SPPA (see the discussion of the Board's Rules regarding "Refusal to Process Applications", in the chapter "Applications"). Rule 10 is an awkward merger of the wording of s.15(3) SPPA [statutory inadmissibility provisions preserved] and s.23 SPPA [abuse of process orders] - sections which have purposes quite unrelated to each other.

Section 15(3) reads:
Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any
Charitably, Rule 10 - when applied - duplicates the effect of s.15(3) (ie. it excludes evidence which by public policy should be excluded) although it does so only through the means of a discretionary authority given to the Board. This is a odd since s.15(3) SPPA (the superior law) requires the categorical exclusion of statute-barred evidence when it operates.

Section 23(2) reads:
A tribunal may reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.
Rule 10 is much closer in impact to s.23(2) SPPA. Although it must be noted that this is a very important issue that the SPPA has expressly made law on. As such - and given the rule in s.25.1(3) SPPA that any Rules must be consistent with statutes - Rule 10 should be read-down to accord with s.23(2).

As such the broad discretionary authority in Rule 10 to "limit() the extent to which, or the purposes for which any oral testimony, documents or things may be used in evidence" to prevent "abuse of its processes" - should be narrowly construed to situations of true "abuse" - not Board convenient or expediency. Of course, a Board exercising the Rule 10 powers could also point to the general s.23(1) SPPA "abuse of process" authority.

It is unfortunate that analysis of the Board Rules must be so complex.

4. The Role of Parties in Evidence Presentation

As is discussed in more detail in the chapter: "Parties", Board Rules [Rules 3.1 and 3.2] itemize in detail the role of "Parties" and "Participants" (these are two distinct classes) in terms of evidence presentation at a hearing. These Rules largely just "codify" (ie. write down and formalize) the principles of law that apply to parties to a hearing in most administrative and civil proceedings anyway.

"Parties" may be witnesses and may be cross-examined by other parties and by the Board, may call witnesses, may cross-examine other parties and witnsses, and may make legal submissions to the Board [Rule 3.1]. All of these "rights" are normal practice in civil and administrative hearing law.

The only possible variation is the wording - possibly inadvertent in Rule 3.1 - that a party may "cross-examine" other parties. Normally this could only happen when the other party first testifies in the evidence portion of their own case, after which the first party could "cross-examine" (ie. ask leading and perhaps aggressive questions) them. The wording of Rule 3.1 creates an argument that one party is entitled to call another party in the first party's evidence case (ie. before the second party has testified) and is then entitled to "cross-examine" (ie. ask leadings questions of) them right away. The normal rule is that when a party calls anyone as "their witness" then the party who called them must engage in "open-ended" (ie. non-leading) questions until (and only if) the witness is declared by the Board to be "adverse" - either based on obvious antagonistic interest or behaviour. Normally at that point the witness may then be cross-examined.

5. The Role of Participants in Evidence Presentation

"Participants" may be witnesses and may be questioned by other parties and by the Board, and may make legal submissions to the Board [Rule 3.2]. Participants may also request (presumably of the Board) copies of documents "exchanged by the parties which are relevant to the participant's interest".

Participants may NOT call witnesses or cross-examine witnesses.

6. Order of Presentation of Evidence

The normal civil and administrative practice regarding order of presentation of evidence is discussed in the SPPA chapter "Hearings", which in turn links to the Small Claims Court dicussion of the same topic.

Administrative Law (Ontario)(SPPA): Ch.4: Hearings

The Board Rules specifically address this issue and provide (with the Board's discretion to vary) that the order of presentation of evidence shall normally be[R9.1]:
  • the Applicant,

  • Parties in support of the Applicant;

  • the alleged Offender (or if convicted of course, "the Offender");

  • Parties opposed to the Applicant;

  • the Applicant in reply.
Each of these 'steps' refers to the presentation of that party's full evidence case (ie. all their witnesses and documentary evidence) so it may include several witnesses - and cross-examination and re-examination of each. Then the next listed party presents their full "evidence case".

7. Evidence of Crime

(a) Overview

Of course, for injury or death to be compensable it must have occured in or resulted from act or omission which constitutes a "crime of violence" (see the chapter "Compensable Injury").

(b) Conviction is Proof of Crime, But Not Required

It is the law [CVCA s.11] (and makes sense, given the high standard of proof in the criminal courts: "beyond a reasonable doubt") - that conviction of the criminal offence is conclusive evidence of the underlying acts or omissions constituting the crime for the purposes of the CICB. However such a conviction is only deemed to be final when all appeals taken have been dismissed - or when no appeal has been taken, the time for filing an appeal has expired.

In any event, conviction or even prosecution for such crime is NOT necessary to ground a compensation order. Where there is no conviction, it still remains a question of fact provable on the civil standard of "balance of probabilities" as to whether a crime occured [CVCA s.16(1)].

Where a Board - relying on the absence of criminal convictions in concluding that no criminal acts occured and in declining to consider other evidence of crime (here a report indicating a fire was of "incendiary origin")- it has committed an error of law justifying the quashing of its decision: Re Fregeau and Criminal Injuries Compensation Board [1973] 2 O.R. 182-185 (Ont Div Ct, 1973). The court stated:
It is clear in the legislation that compensation can be awarded to the victim of a crime whether or not any person is apprehended, prosecuted or convicted.
(c) Adjournment Pending Criminal Result

If prosecution/s are still pending - whether commenced or not - the Board has discretion - on its own initiative or on application of the Attorney-General - to adjourn the proceeding pending the outcome of the prosecution/s [CVCA s.16(1)].

The "administrative Board" may have elevated this discretionary authority to a firm rule applicable to all "presiding Boards". A Board information sheet entitled "Important Information for Persons Making Claims for Compensation" (received Feb 2006) states:
If the criminal trial is still before the courts, the Board may not proceed to hear your claim until the trial has been completed.
To the extent that this is a firm rule applied by the Board, it is another example of the Board "fettering" it's discretion (see the topic "Fettering Discretion" in the chapter "Questionable Board Practices").

(d) "Not Criminally Responsible"

Of course, an integral element of any determination of criminality is the "intention" of the accused. In a criminal court, the defendant may escape criminal conviction is they can convince the court that - at the time of the events of the alleged crime - they were mentally incapable of forming criminal intention (criminal lawyers call this "not criminally responsible" or "NCR").

However, in determining the alleged offender's intention regarding the act or omission causing a potentially compensable injury or death, the criminal defence of incapacity to form criminal intent (NCR) shall be disregarded. Whenever the NCR defence is successfully used in the criminal trial, the criminal intention to commit the relevant criminal offence is "deemed" to have been proven in the CICB proceedings [CVCA s.16(2)]:
s.16(2) CVCA
Even though a person for any reason is legally incapable of forming criminal intent, the person shall, for the purposes of this Act, be deemed to have intended an act or omission that caused injury or death for which compensation is payable under this Act.
Care must be taken when applying s.16(2) literally as it create a presumption of criminal intention WHENEVER NCR is found. Of course, the criminal proceedings must still have made fact-findings on all other elements of the relevant offence for those proceedings to supply "proof of crime" for the CICB proceedings.

8. Witnesses

The basic law and principles which govern the issuance of summonses (aka "subpoenas") and questioning of witnesses is covered on the chapter "Evidence" in the SPPA legal guide, which is linked here again for convenience:

Admnistrative Law (Ontario)(SPPA): Ch.6: Evidence

The Board however has made Rule 8: "Witnesses" which largely repeats basic legal principles as part of the SPPA. The few variations from these principles are as follows:
  • the Board itself may summons witnesses;

  • parties requesting the issuance of summons must "satisfy the Chair that the evidence the witness is expected to give at the hearing will be relevant to the subject matter of the proceeding", failing which the Board may refuse to issue the summons. Refusal to issue a summons "may be reviewed by the Board at the hearing" (and presumably reversed if felt appropriate).

  • the "normal" rule that a tribunal may order witnesses to be excluded from the hearing until it is time for them to testify is codified in Rule 8.2. This rule also typically includes an order (or assumed order) that there shall be no communication by anyone with the excluded witness regarding any evidence given until after they have testified (which - to be safe - is when the proceeding is finished and any appeal period is expired).

    Rule 8.2 is however unusual in that clearly implies that even 'parties' who are going to be witnesses may sometimes be ordered excluded - although "not generally". This is a significant variation from normal procedure which tends to presume that full attendence by a party is an aspect of natural justice. Any orders made excluding a party-witness would be subject to close judicial examination should the occasion arise, although if the excluded witness were an alleged offender the potential trauma caused the victim would have to be taken into account.

9. Witness Protection

Nothing that a witness testifies to can be used in evidence against them in any subsequent proceedings against them - civil or criminal - except in a prosecution of perjury (lying) [SPPA s.14(1)]. This is a standard principle of law - known as the protection against "self-incrimination" - that is embodied in the Canadian Charter of Rights and Freedoms [s.13]. Its purpose is to encourage witnesses to speak freely and truthfully without fear of prosecution if they disclose their own criminal behaviour.

The Board's application forms, which call for a detailed description of the applicant's injury experience in writing (as discussed under the topic "Board Personal Information Practices" in the chapter "Questionable Board Practices") and the Board's heavy use of written hearings (see the topic "Written Hearings" in the chapter "Hearings") both jeopardize this important right. As s.14(1) SPPA only applies "at an oral or electronic hearing" it can be argued that the self-incrimination protection does not apply with respect to statements written in the application form or in witness statements tendered in a written hearing.

Witnesses at oral or electronic hearings are also entitled to be advised by a representative (ie. counsel or agent) [SPPA s.11(1)], "but such representative may take no other part in the hearing without leave [permission] of the tribunal [ie. the Board]". Where an oral hearing is closed to the public, the representative is only entitled to be present while that witness is testifying [SPPA 11(2)]. The problems mentioned above regarding the application forms and the use of written hearings similarly jeopardize this statutory right of witnesses to counsel.

Further, the Board may "exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser." [SPPA s.23(3)]. Note that, under the Access to Justice Act, 2006 paralegals came under Law Society governance, and thus are protected under this provision.

10. Board Role in Evidence Collection

(a) Overview

The Board's policy (discussed below) of exercising control of the evidence-gathering in a proceeding has both positive and negative implications for parties. While assisting unrepresented applicants in accumulating evidence useful for their case, it degrades an applicant's natural justice right to control the management of their case and their self-incrimination protection - particularly as the Board claims the right to hold off of scheduling a hearing until it is satisfied with the state of the evidence.

The legitimacy of this activist role in evidence-gathering is critically examined under the topic "Board Personal Information Practices" in the chapter "Questionable Board Practices". The present discussion examines the details of the policy and its implications for applicants. These implications highlight the reality that the quasi-judicial tribunal process established by the CVCA has been largely been converted into an administrative application process, a theme seen repeatedly throughout this legal guide.

(b) Board Policy

It is plain from Board publications ["Fact Sheet: What is the Application Process" (01 Feb 2006) (quoted here) that the Board staff ("compensation analysts") assert a controlling role in evidence procurement in a CICB application (with the "legwork" split between the applicant and the Board):
3. A Compensation Analyst is assigned to your file. The Compensation Analyst will review the forms and decide what information will be required to support your claim. After this review a letter will be sent to let you know what other information is needed.

At this stage the analyst will guide you to provide the Board with information to support your claim. This includes any hospital, medical, dental, therapy and/or court reports directly related to the incident. The Board will only pay for reports it has requested from the claimant.

4. Police information is gathered. If this incident was reported to the police, the Board will contact the police service involved and request a written report.

5. File is complete. When all the required information has been received, the analyst will write to let you know that the file is complete and ready to be scheduled for a hearing.

Please note, a claim may not be scheduled for a hearing until all police
investigations and/or court cases have been completed.
(c) Assisting Applicants

. Evidence of Crime

Regardless of whether there has or has not been a conviction, police are likely to be a primary source of evidence of crime - or verification of conviction. As the Board notes in its 2002/3 Annual Report, it "works closely with police forces to obtain information in relation to criminal incidents reported by victims". The "Fact Sheet: Why is there a Hearing?" (01 Feb 2006) mentions the use of a "Police Questionnaire", which is presumably the Board's form sent to the involved police force to elicit their written evidence.

Applicants can therefore be hopeful of assistance from the Board in this regard - although they are certainly not dependent upon the Board to accumulate and prepare their evidence. Applicants wishing to obtain evidence and records directly from police should contact the communications or public relations branch of their local force to inquire as to local access procedures. Forces may require a formal written "freedom of information" request, which entails a $5.00 application fee and potentially more charges for searching and photocopying. In most cases these should be modest, and in any event requesters can ask for fee waivers based on financial hardship.

. Evidence of Injury

The 2002/3 Annual Report (p.10) states that since 1998 "the Board resumed payment for all hospital records, medical, dental and therapy reports that are required to process a claim for compensation.

The Board's "Fact Sheet: Payment for Medical Records" (Oct 2005) sets out the Board's policy on such payments. The Fact Sheet states payment will be made for copies of medical records, and for consultation reports to a maximum of $100 each.

As a practice, the Board will inform an applicant in writing (with a Board "report request form") what types of records and reports they want and the applicant bears responsibility for obtaining them. The "Fact Sheet" advises the applicants to:
... inform the hospitals, doctors, dentists, therapists that invoices should be mailed to the Board along with the records and the reports. A copy of this information sheet may be presented as confirmation that the Board is responsible for payment of records and reports ONLY if accompanied by a formal report request form from the Board.
This practice - while cumbersome - is helpful to unrepresented applicants. The amount of $100 for consultation reports of far below private market rates, and well below current legal aid rates of $150 for GP consultation reports and $250 for specialists. Many doctors are resistant to providing thorough reports at these low rates of remuneration.

Of course, nothing in this policy prevents parties from obtaining their own medical reports and filing these in evidence, or - more often - to use pre-existing materials and reports contained in the medical file (which may be requested directly from the doctor/s and/or hospitals involved; fees will likely apply).

(d) Problems

A major problem arises as the Board - according to the policy - the maintains the authority to not schedule a case until the Board is satisfied as to the state of the evidentiary record. While some evidence-gathering assistance often be welcome by unrepresented parties (see the above section), barring the right to proceed to hearing until the Board is satisfied with the evidence record is unprecedented in traditional administrative law practice and raises serious natural justice concerns. (see the discussion of "Board's Personal Information Practices" in the chapter "Questionable Board Practices").

This "practice" - not being law - must be guarded against where a party wishes to proceed in the absence of evidence thought necessary by the Board. Parties may end up insisting that their matter be scheduled - and then being met with gate-keeping responses by the Tribunal such as summary dismissal or refusal to process (on these topics see the chapters "Applications" and "Pre-Hearing Proceedings").

Further, the 18-page (total) Application package has the flavour of a "questionnaire" rather an "application form". Applicants are compelled to commit themselves in writing to answers (of course in the usual tiny answer boxes) which may not reflect the manner in which they would otherwise present their evidence case. Demands for specific documentation are made without space to explain any failure to provide. The quasi-judicial adjudicative tribunal process envisioned in the CVCA legislation takes on the distinct air of an administrative welfare application - with hearings being relegated to the status of an afterthought (see the chapter "Hearings").

A further problem with these "questionnaire" application forms is the jeopardy posed to statutory and constitutional self-incrimination protections. This is to say nothing of the deterrent effect on potential applicants who view themselves as required to set out the details of their behaviour as the price of exercising their entitlement as a citizen to use the CICB process (see the discussion of this under "Board Personal Information Practices" in the chapter "Questionable Board Practices".)

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