Barrister and Solicitor
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NOTE: This chapter, which criticizes CICB practices, was written in April 2006 and has not been updated since then. While many of the specific references and examples in it are out-of-date, the points made are by-and-large still valid (as has been pointed out by the courts on several occasions). Essentially I don't see any point to devoting time to analyzing the changing specifics of what is a chronic situation.
01 January 2015
5. Board "Personal Information" Practices
The entitlement of the Board to use, collect and disclose personal information of the applicant is crucial to Board practice as it is currently conducted: in an investigative and inquisitorial mode rather than in a traditional common law party-driven mode. The Board's information collection practices "enable" the degree of control that it asserts over the conduct of proceedings (see "Control of Process", above).
The Ontario Freedom of Information and Protection of Privacy Act ("FIPPA"), which governs the Board (it being an "institution" governed by FIPPA [Reg 460/90]) with respect to the collection and use of information about an applicant, defines the term "personal information" as it is used in that Act. Relevant parts of that definition are:
s.2Obviously, for administrative tribunals such as the Criminal Injuries Compensation Board to function effectively, they must be able to legally possess and use ("collection" is a separate issue which will be examined) a person's "personal information" as it is relevant to the legitimate purposes for which the tribunal is constituted. Traditionally in common law legal proceedings this information is provided to a court or tribunal by parties either in the evidence or disclosure phases of the legal proceeding.
"personal information" means recorded information about an identifiable individual, including,
(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved, ...
For the Criminal Injuries Compensation Board the type of information required to perform their function ranges from the obvious such as name, address and phone number to the more personal such as medical information and expenses, details of crimes against the person, sources of income (for collateral benefit and loss of income assessments) and such-like.
This section examines whether the Board's personal information practices are within the law. The issues fall out into three: use, collection and disclosure of personal information.
(b) Board Information Practices
. "Authorization for Release of Information" Form
This form is enclosed with the application package for the applicant to sign and return with the application. It is the authority that the Board uses to obtain information about the applicant from third parties such as police, medical personnel, employers, benefit providers and others.
Most of this form is standard stuff. Clause 1 lists the (above-noted) entities and professionals FROM whom permission to access records is sought. However the form includes the following:
2. I UNDERSTAND that the Board may notify the authorities mentioned above that I have submitted an application and may also inform them of the Board's decision.The concern of course is the requirement in the Board's form that the applicant consent to the Board disclosing TO the listed entities and professionals "that I [the applicant] ha(s) submitted an application and may also inform them of the Board's decision." I will examine the legality of this practice below in the discussion of the "Legal Authority to Disclose Information".
3. I UNDERSTAND that any information submitted to the Board is subject to The Freedom of Information and Protection of Privacy Act and the Statutory Powers Procedures Act.
4. I AGREE to give the Board all necessary assistance with respect to the above-noted matters.
. Other Board Application Forms
Most of the (several) forms (such as the "Expenses Form", "Benefits Form" and "Employment Form") used in a CICB application contain a sentence stating:
The personal information on this form is collected under the authority of the Compensation for Victims of Crime Act RSO 1990 c.24 as amended. The principle purpose for which this information will be used is to make a determination of eligibility for an amount of compensation. (c) Legal Authority to Use, Collect and Disclose Personal Information
. Information v Evidence
The point has to be made at the beginning of this discussion that the CVCA process as set out in the legislation is judicial in nature - NOT administrative. Compensation under the CVCA is not meant to be assessed and granted like an insurance claim or an employment insurance filing - it is meant to be decided upon by an impartial adjudicator after a hearing in which parties testify, cross-examine witnesses and make legal submissions.
This distinction, so muted in present Board practice, is crucial: in the administrative model information is only information - but in judicial model it is EVIDENCE.
I have made the point elsewhere that the CICB process, as mediated by Board Rules and practices, is akin to the welfare (Ontario Works) application process. That process, often considered the most intrusive in terms of financial and personal disclosure, is at least arguably (there are arguments, trust me) supported within that system by the following legislative provisions:
Ontario Works ActThat provision calls for both information AND verification of information, which most people would understand as some form of corroborating EVIDENCE. That provision, IF applicable to the CICB process - might justify the Board's information collection practices. However there is NOTHING LIKE that provision in the CVCA legislation.
No person is eligible for income assistance unless,
(c) the person and the prescribed dependants provide the information and the VERIFICATION (emphasis added) of information required to determine eligibility including,
(i) personal identification information, as prescribed,
(ii) financial information, as prescribed, and
(iii) any other prescribed information;
Let me state that again plainly: short of using a summons, there are no investigatory or EVIDENCE-gathering powers granted to the Criminal Injuries Compensation Board by statute.
Recall now the nature of the Board's "information" collection practices, discussed in "Board Information Practices", above. They amount to several questionnaires for "information" from the applicant regarding: the events of the criminal-related incident, medical details of the injury, expenses and financial information used for collateral benefit deductions. These are all necessary for the Board to understand the case it has to adjudicate and can (but for the fact that they all must be 'certified as true' by the applicant) be viewed as analogous to civil "pleadings" in a lawsuit: the things that the applicant intends to prove IN EVIDENCE at the hearing.
The other main leg of the Board's "information" practice is a blanket third party "Authorization for Release of Information" (consent) which the applicant MUST give to the Board as a part of the application package. This "Authorization" ostensibly allows it to obtain the "information" it wants from third parties such as doctors, employers, other government agencies, the police, etc.
These are NOT the same things. Statements by an applicant of their claim are allegations to be proven - later, in evidence. Statements from third parties -invariably sent in writing - ARE evidence. Further, claim statements from an applicant which are required to be 'certified as true' are not allegations - they are now converted into EVIDENCE.
These issues are at the heart of the Board's assumed role of controlling the hearing process (see "Control of Process" in the chapter "Questionable Board Practices"). When considering the Board's "information practices", remember that we are not talking about "information", we are talking about the Board's "EVIDENCE-gathering practices".
. FIPPA Personal Information "Use" Provisions
Above I have made a great deal of the distinction between "information" and "evidence". I argue that whatever the authority of the Board has to collect and use "information", it is only with respect to "information" reasonably required for the purpose knowing the allegations made, obtaining identities and contact information of the parties, and generally facilitating its main task - the conducting of a hearing between the parties to determine if the applicant is entitled to compensation under the CVCA.
The key provision of FIPPA on the use of personal information reads:
S.41Firstly, the issue of "consent" - is quite perplexed given the context in which the consent is provided by the applicant: in MANDATORY forms required by the Board as a condition of making an application. As it is trite law that any legally-binding "consent" must be given without duress (eg. without the threat of having one's legal rights prejudiced) it is questionable on the facts whether true and legal consent has been provided. One can hardly call this "consent".
An institution shall not use personal information in its custody or under its control except,
(a) where the person to whom the information relates has identified that information in particular and consented to its use;
(b) for the purpose for which it was obtained or compiled or for a consistent purpose; or
That said, IF information (such as the contact information, identities of parties, allegations and other things set out in the Board's application forms) necessary for the Board to legitimately prepare for a hearing between the parties is freely and consensually given by a party, then s.41(a) is satisfied. Further, the Divisional Court in Hepplewhite v CICB (Ontario) OJ #963 (QL) (Div Ct, 1972) (discussed below) is authority that such properly-obtained "information" can then properly be used in "evidence".
The issue is not whether information the Board legitimately obtains CAN be used in evidence, the issue is whether the Board is using its abusing its information-gathering TO collect evidence. To that end I continue to examine the Board's personal information practices in light of its FIPPA authority to collect personal information.
. FIPPA Personal Information Collection Provisions
The CVCA being silent about any right of the Board to collect information or vidence, the CICB is governed by the general "information" collection provisions set out in the Freedom of Information and Protection of Privacy Act (FIPPA), as follows:
s.38(2) . Discussion
No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity.
Personal information shall only be collected by an institution directly from the individual to whom the information relates unless,
(a) the individual authorizes another manner of collection; ["consent"]
(b) the personal information may be disclosed to the institution concerned under section 42 or under section 32 of the Municipal Freedom of Information and Protection of Privacy Act; ["disclosure authorization"] ...
(f) the information is collected for the purpose of the conduct of a proceeding or a possible proceeding before a court or tribunal; ["use in a legal proceeding"].
For the Board to rely in these provisions to justify its "information" collection practices it must show that BOTH s.38(2) and s.39(1) are satisfied. Of course, s.39(1) - which can authorizes a specific MEANS of collection of information (ie. from third parties) - can only operate if there is an underlying right of the Board to collect information at all under s.38(2).
Let's consider s.38(2). First off, (unlike the Ontario Works Act quoted above) there is no "express authorization" in the CVCA or elsewhere for the collection. Secondly, the CICB is not conducting "law enforcement" activities - which FIPPA defines as police or penal proceedings.
Therefore the Board's information collection practices, if s.38(2) is to justify them, must be "necessary to the proper administration of a lawfully authorized activity". Here we enter into the crux of the matter. Does the "proper administration" of the Board's activities include evidence-gathering? - or is that left to the parties at hearing to 'argue it out'?
This is an open question and reveals starkly the competition between the two adjudicative models competing for dominance over Board activities: the European-style "inquisitorial" model where the adjudicator plays an active investigative role and the common law 'party-driven' model where it is left to the parties to generate and produce the evidence which will prove their case. This topic has received a lot of attention in this program along the theme of the "controlling process" and "gate-keeping" practices of the Board (see those discussions in the chapter "Questionable Board Practices"). In my view the common law model is more consistent with Canadian legal practice and philosphy and any divergence from this approach needs to be far more explicitly manifest in the parent legislation than is the case within the CVCA. If the legislature meant to diverge from this traditional model in establishing the CICB it would have done so much more expressly, facilitating the new model with appropriate provisions in the Act.
But while the CVCA has not diverged from the common law model, Board practice has. Board practice has attempted to convert the CICB quasi-adjudicative tribunal structure into a near-administrative model which is (incidentally) quite similar to the tightly-structured welfare (Ontario Works) application process. The Board has attempted to massively supplement the traditional evidence-gathering mechanisms (ie. the summons, which it can itself use: Board Rule 8) - by using its information-gathering entitlements to that end.
Let's say we get past s.38(2) and into s.39(1). This provision authorizes collecting information from the "individual to whom the information relates" but PROHIBITS information collection from third parties, unless:
. the individual consents to it [FIPPA s.39(1)(a)],The issue of "consent", as in s.39(1)(a), has already been discussed (see "FIPPA Personal Information Use Provisions", above). The conclusion there is that the "consent" contained in the "Authorization to Release Information" form is coerced and therefore ineffectual in law.
. "the information is collected for the purpose of the conduct of a proceeding or a possible proceeding before a court or tribunal" [FIPPA s.39(1)(f)].
Note: The s.39(1)(b) exception under FIPPA, which allows collection of information when it can be disclosed under s.42 FIPPA, is discussed below and essentially requires consent as well.
The last category which legitimizes third party personal information collection by the Board is "the information is collected for the purpose of the conduct of a proceeding or a possible proceeding before a court or tribunal". This is the strongest claim that the Board has to an entitlement to third party information. However if they have that legal authority - why are they compelling applicants into signing third party "Authorizations"? This practice implicitly indicates their intention to rely on the above-discussed consent provisions, which are flawed for the reasons explained above. These are "authorizations" - by the way - which not only purport to authorize third party information release but ALSO disclosure by the Board to the police, doctor and employees "that I have submitted and application and may also inform them of the Board's decision".
The court in Hepplewhite (discussed above and below) has already endorsed the Board's right to investigate an applicant, but it has not extended this to compel the applicant to consent to and "give the Board all necessary assistance" in the investigation. The Board is in no greater position to investigate than one private citizen against another. To use the FIPPA information provisions for these investigative purposes is an abuse of those entitlements.
. FIPPA Personal Information Disclosure Provisions
Section 42, the FIPPA provision dealing with an institution's personal information "disclosure" entitlements, is important not only for that purposebut also because - if it IS satisfied - then the s.39(1) third party information collection provision (considered above) is also satisfied.
s.42Section 42(b) is essentially a consent provision. I have already argued (above, "FIPPA Personal Information Use Provisions") that the consent given in the Board's "Authorization" form is compelled and as such ineffectual in law.
An institution shall not disclose personal information in its custody or under its control except,
(b) where the person to whom the information relates has identified that information in particular and consented to its disclosure; [or]
(c) for the purpose for which it was obtained or compiled or for a consistent purpose;
As for disclosure justified as being "for the purpose for which it was obtained or compiled or for a consistent purpose", it is hard to imagine what "purpose" might justify disclosing to: the police, the doctors, other benefit providers and the applicant's employers, "the Board's decision." These people and agencies are - if they are anything - witnesses and evidence-providers: period. In the 2002/3 period the Board reported that 32.4% of its cases were "sex-related claims" (15.6% of these are "sexual assault, child") - what possible business could "the Board's decision" be to the employer of such a claimant?
In my analysis there is no legitimacy in the Board's personal information disclosure practices. Consequently the s.42 exception for third party collection (above) fails for that reason as well.
The case of Hepplewhite v CICB (Ontario) OJ #963 (QL) (Div Ct, 1972) (which pre-dates the present FIPPA personal information disclosure laws) endorsed the right of the Board to engage in its own "investigations" of an applicant. In Hepplewhite the Board used in evidence police reports it had been given(necessarily by the police) about the applicant, without the applicants' consent and without disclosing them to the applicant's counsel. Such a practice by the police would however be prohibited under present-day personal FIPPA information disclosure rules, discussed here.
These legal issues of course do not even touch on the deterrent effect imposed on potential applicants who actually read these forms, and see what others might be told about their personal lives by the Board.
(d) Collection Notice Requirements
. FIPPA Provision
Section 39(2) of FIPPA reads:
s.39(2) . "Other Board Application Forms"
Where personal information is collected on behalf of an institution, the head shall, unless notice is waived by the responsible minister, inform the individual to whom the information relates of,
(a) the legal authority for the collection;
(b) the principal purpose or purposes for which the personal information is intended to be used; and
(c) the title, business address and business telephone number of a public official who can answer the individual's questions about the collection.
As noted above, most of the Board's application forms ("Other Board Application Forms", above) contain a sentence stating:
The personal information on this form is collected under the authority of the Compensation for Victims of Crime Act RSO 1990 c.24 as amended. The principle purpose for which this information will be used is to make a determination of eligibility for an amount of compensation.It is plain that the above statement is an effort to comply with s.39(2) of FIPPA - does it however do so?
Recall from the above discussions that "institutions" are prohibited from collecting personal information, and that one of the exceptions from this prohibition where "the collection is expressly authorized by statute": s.38(2)FIPPA. However no EXPRESS (or implicit) provision is found in the Compensation for Victims of Crime Act - which the Board has cited in the above notices - that's almost certainly why there is no specific section reference. [Note: the notices in these forms above otherwise comply with s.39(2) as they state a purpose of the collection and a contact individual]
. "Authorization for Release of Information"
This form - to be signed by the applicant and returned to the Board in order to allow them to obtain personal information about the applicant held by third parties such as medical personnel, employers and other benefit-providers - contain the statement:
I UNDERSTAND that any information submitted to the Board is subject to the Freedom of Information and Protection of Privacy Act and the Statutory Powers Procedures Act.If this is the s.39(2) notice (there are no others) it fails to comply with s.39(2) on all counts. It does not indicate the legal authority for the collection, only that information submitted is "subject to" FIPPA and CVCA. It is silent with respect to the purpose of the collection and contact information of a staffer who can respond to questions.
Of course it can be argued that the "Authorization" is not itself a direct effort to collect information so much as a "consent" form enabling the Board to later collect information (it's status as a "consent" is discussed above: "FIPPA Personal Information "Use" Provisions"). However this argument only delays the triggering of s.39(2) notice duty to the point when the Board actually makes the request to third party - which the Board does not do.
. Too Much Ado?
Anyone patient enough to walk through the above arcane examinations may wonder why such effort is being devoted to seemingly minor administrative information practices.
"Surely this is necessary for an applicant's case?" one might ask. To which I would answer: Then offer it as a service to an applicant - don't make it mandatory.
"Aren't we enabling applicants to lie to the Board if it can't 'check their stories'"? To which I would answer: their stories can be checked by other parties using summons like everyone else has to. Also, failure of a party to produce available evidence is already a reason for negative fact-findings against them.
But to understand why there are greater problems than these we have to look at the whole picture of the Board "gate-keeping" and "process control" activities and how these can be used against applicants - and all parties for that matter.
. Enabling the Board's Controlling Role in the CICB Process
The chapter on "Evidence" explains how it is Board practice not to schedule a hearing until they are satisfied with the evidentiary record:
All claims made to the Board are scheduled for hearing once all supporting information has been submitted. The time required for a file to proceed to a hearing is largely dependent on the timeline involved in obtaining the required documentation to support the claim [2002/3 Annual Report (Table 1)].This is the essence of the Board's inquisitorial role. If a party refuses to comply with and accept the Board's controlling role in evidence-gathering their application will not be allowed to proceed - a sanction clearly reminiscent of the "gate-keeping" barriers discussed elsewhere in this chapter.
The Board's information policies - coupled with its heavy reliance on written hearing (and the self-appointed rights to refuse and summarily dismiss applications: see earlier in this chapter) are part and parcel of its effort to convert what at law is a relatively straightforward tribunal adjudicative process into an administrative application process quite analogous to the traditional welfare application process. The Board, whose proper functions are adjudication over the effect of crime on someone's life, is being converted into an administrative bureaucracy.
. Applicant Perceptions
The information practices of the Board - particularly the "Authorization" - can also deter use of the system by potential applicants. Applicants who read these forms in detail are led to believe that in order to make a CICB application they have to expose themselves to the disclosure of personal information to third parties - for no apparent good reason.
While SOME of these third parties: police, doctors, therapists, psychiatrists and others may already know of the circumstances leading to the CICB application - why should the Board have authority to disclose their DECISION on the application to any of these - especially employers? only legitimate role of the latter is to PROVIDE information necessary for the Board to determine award quantum - not to receive information regarding the application or its result.
Would a rape victim - reading and understanding the terms they were consenting to - be comfortable believing that their employer may be notified of the application and the decision made in it?
. Self-Incrimination Protections Degraded
An issue discussed in the chapter "Compensation" is the Board's perspective(expressed in the 2001/2 and 2002/3 Annual Reports) that the role of the Board is to "provid(e) compensation to innocent victims of crimes of violence". As noted in that discussion - this is a mis-statement of the law - which only provides that a victim's behaviour which contributed to the injury or death is one of several factors that a Board member can look to when exercising their discretion whether to make an award, and if so in what amount [CVCA s.17(1)].
Setting aside this additional legal bias of the Board - what of the circumstance of a potential applicant who is concerned about the legality of their behaviour in a crime incident (for example a murder occuring in the course of the applicant buying marijuana)?
By law any witness in an oral or electronic administrative proceeding has the automatic (ie. it need not be expressly claimed) legal protection that anything they say during such hearing cannot be used against them in any other legal proceedings, excepting a perjury prosecution [SPPA s.14(1)]. This is a time-honoured legal tradition designed to ensure that witnesses speak freely and honestly and it is embodied in the SPPA and the Canadian Charter of Rights and Freedoms [s.13].
Insisting - as the application forms do - that (often unrepresented and legally-unaware) applicants set out the details of the crime incident in writing and outside an oral hearing (chances are high the hearing would be "written" as well) - and then requiring them to "certify" their allegations as true, eliminates this legal protection and renders their statements admissible as evidence.