Criminal Injuries Compensation (Ontario)
Ch.3 - The Board (01 January 2015)
- Incapacity of Members
- Discretionary Range of Board
(c) Current Law
The "Criminal Injuries Compensation Board" ("Board" or "CICB") is the primary administrative body under the Compensation for Victims of Crime Act ("CVCA"). It is constituted as a corporation, though not governed by the Ontario Corporations Act [CVCA s.3(2)].
The Board's office is located at:
Criminal Injuries Compensation BoardCriminal Injuries Compensation Board website
439 University Avenue
(416) 326-2900 (voice/local)
(416) 326-2883 (fax)
As the Board is made up of one or more persons upon whom a "statutory power of decision" is conferred by a statute it is a "tribunal" within the meaning of the Statutory Powers Procedures Act ("SPPA") [SPPA s.1(1)]. This means that the procedures of the Board are governed by the SPPA. This website contains a separate detailed legal guide on the SPPA.
Statutory Powers Procedures Act Legal Guide
The present legal guide contains much critical discussion of the relationship between the CICB's Rules of Procedure and the SPPA. The chapter "Overview" contains a general discussion on the several sources of law that govern CICB procedures.
By law there are at least five member on the Board, one of whom shall be Chair and another Vice-Chair [CVCA s.3(1)].
The Chair has "general supervision and direction over the conduct of the affairs of the Board, and shall arrange the sittings of the Board and assign members to conduct hearings as circumstances require." [CVCA s.3(3)]. This authority can be exercised to take advantage of the expertise of various members or for any other reason, such as avoidance of conflict of interest. The Vice-Chair replaces the Chair when the Chair is "absent or unable to act" [CVCA s.3(4)].
The members, Chair and Vice-chair are appointed to the Board by the "Lieutenant-Governor in Council" (provincial cabinet) for fixed terms. They are what are generally known as political appointees although their appointments as members are subject to public examination (questions and answers) through legislative committees. The examination of potential Board members may be found in Hansard.
The Board - like most Tribunals - sits in "panels", being one or more individual members assigned to hear the proceeding. The chair may assign a one-member panel to hear a proceeding [SPPA 4.2.1(1)].
Procedural and interlocutory matters may be heard by a panel of any size, as the Chair assigns [SPPA s.4.2(1)]. Examples of "procedural matters" might include extending timelines for filing documents, approving alternative service methods for documents, or adding and removing parties from the proceeding. "Procedural matters" are distinct from "substantive" matters, which tend to effect rights directly - such as final fact-findings of a Board. "Interlocutory matters" usually deal with substantive rights - but only temporarily. Examples of interlocutory matters might include temporary preservation of rights through a "stay" (ie. suspension of a parallel proceeding), or temporary possession of property.
A majority of the panel members, or a unanimity in the case of a two-member panel, constitutes the Board's decision [SPPA s.4.2(3)].
As well, when assigning members to a panel, the Chair shall consider any requirement imposed by statute or regulation "that applies to the proceeding that the Board be representative of specific interests."[SPPA s.4.2(2)].
4. Incapacity of Members
Board decisions may be "reserved". This means that the member/s want some time to consider and write their decisions after the evidence and submissions are completed. Occasionally, this creates possibilities for problems where the member dies, becomes sick, their term expires - or just gets behind in their workload. The SPPA deals with some of these situations.
Despite the expiration of the term of a member who has participated in a hearing for which no decision has yet been rendered, their terms is deemed to continue for the purpose of "participating in the decision and for no other purpose" [SPPA s.4.3]. As it is also a principle of law that only those who hear a case fully may decide it - when the term of a member in a single-member panel expires while evidence and submissions are still being made - it is likely that a new hearing will be required.
However, where the panel is comprised of more than one member and where a member who has been hearing a proceeding becomes unable - for any reason - to continue hearing or deciding, the remaining members may complete the hearing and give a decision [SPPA 4.4(1)].
The Board shall keep a "record" (ie. file) of all proceedings in which a hearing has been held, including [SPPA s.20]:
- the document by which the proceeding was commenced;
- notice of hearing;
- any interlocutory orders, decisions and reasons for decision (where reasons are given);
- all documentary evidence filed with the Board, except as use of such evidence is limited by statute (in which case presumably it should not have been admitted into evidence and should be returned as appropriate);
- the transcript, if any, of the oral evidence given at the hearing.
6. Discretionary Range of Board
As is discussed under the topic "Fettering Discretion" in the chapter "Questionable Board Practices", any discussion of the "Board" as a legal entity must distinguish its "administrative Board" role from its "presiding Board" role. The latter form is its primary adjudicative form: members sitting in a panel to adjudicate the proceeding before it. The former - while administrative and logistical - has taken on a significant policy-making role which has significantly impacted on the traditional common law adjudicative role of the "presiding Boards".
The case of Sheehan v CICB 5 O.R. (2d) 781 (Ont CA, 1975) is sometimes cited in case law as authority for the proposition that the Board is entitled to a high degree of discretion and deference by appeal courts when deciding what factors are relevant in the granting of an award. The case does not draw a distinction between the "administrative Board" and the "presiding Board". In Sheehan a presiding Board considered the claim of a convict injured in a penetentiary riot and dismissed it on the following basis:
Many people will find these factors to be irrelevant to the jurisdiction of the Board or its purported function of compensating victims of crime, and a judicial review application of the Board's Ruling to the Divisional Court on those grounds was successful and the Board's ruling was quashed.
- the claimant put himself in a position of risk by being incarcerated (and thereby in the penetentiary);
- the penetentiary was outside the control of the province of Ontario;
- the claimant failed to make any other compensation claims in relation to the injury.
However the Court of Appeal re-instated the Board's ruling - expressing strong deference to the Board's discretion to consider all factors it felt to be relevant:
Apart from the obligation not to act arbitrarily or capriciously and to observe the principles of natural justice (and there is no allegation that the Board offended in any of these regards) the jurisdiction of the Board to determine in each case what were the relevant circumstances and to decide having regard to these circumstances is untrammelled.The key statutory wording under consideration in Sheehan was from the precursor to the present CVCA, and read as follows (emphasis added):
s.5 Law Enforcement Compensation ActThis wording is unusual in assigning discretion to the Board to select what factors it should consider in exercising its discretion - typically a statute will list factors which the discretion should have regard to.
In determining whether to make an order for compensation and the amount thereof, THE BOARD MAY HAVE REGARD TO ALL SUCH CIRCUMSTANCES AS IT CONSIDERS RELEVANT, including any behaviour of the victim that directly or indirectly contributed to his injury or death.
(c) Current Law
Amendments to that legislation, now re-enacted in the Compensation for Victims of Crime Act, have undermined the case for courts to defer to Board discretion as in Sheehan (emphasis added):
s.17(1) Compensation for Victims of Crime ActThese amendments were in force at the time Sheehan was argued in the Court of Appeal and the Court recognized that this change might effect the result in a future case, commenting:
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.
Sections 3(1), 5 and 7(2) [LECA] have conferred upon the Board a discretion expressed in the broadest terms which remains applicable to these applications, notwithstanding the fact that the successor statute, the Compensation for Victims of Crime Act, 1971 has altered the applicable provisions and to this extent may have varied the jurisdiction conferred upon the Board.Plainly, the broad nature of the Board's discretion over what factors it may weigh in awarding compensation has been narrowed under the present CVCA. The Board - on appeal or review - will therefore be held more closely to the express factors set out in the CVCA - and to factors that just plain 'make sense' according to basic (and logical) principles of relevance.