The 2019 Ontario Budget, released in March, introduced a number of sweeping changes, including a focus on “Ensuring Agencies are Relevant, Efficient and Effective.”
One of these proposed changes was to the Criminal Injuries Compensation Board (CICB), to replace the quasi-judicial tribunal model established under the Compensation for Victims of Crime Act with an administrative model. This as then introduced and passed under Bill 100, Protecting What Matters Most Act (Budget Measures). The rationale, as with much of the legal reforms in this budget, is to reduce the expenses related to the adversarial process and expend resources directly on those who need it.
These expenses are typically not derived from tax dollars, but instead comes from the Victims’ Justice Fund Account under a special account in the Consolidated Revenue Fund. These are collected through fine surcharges under subs. 60.1 (4) the Provincial Offences Act and subs. 727.9 of the Criminal Code. The use of these funds is statutorily identified under the Victims’ Bill of Rights, these funds are meant to be used to assist victims of crime,
…to assist victims, whether by supporting programs that provide assistance to victims, by making grants to community agencies assisting victims or otherwise.
This week, the province announced the features of the new model, the Victim Quick Response Program + (VQRP+), which comes into effect on Oct. 1, 2019. The Criminal Injuries Compensation Board (CICB) established under the Act will continue to accept applications until Sept. 30, 2019, after which all new claims will proceed to the VQRP+. The CICB will continue to process all applications received before the deadline to their conclusion.
On Oct. 1, 2019, the Act will be effectively amended as follows:
4.1 (1) Despite anything to the contrary in this Act, on and after the day section 1 of Schedule 11 to the Protecting What Matters Most Act (Budget Measures), 2019 comes into force, no person may,
(a) make an application for compensation under section 5;
(b) request a hearing and review under section 10;
(c) commence an appeal under section 23; or
(d) make an application for variation under section 25.
The CICB was added to the cluster of Social Justice Tribunals Ontario (SJTO) around 2016, which are themselves being collapsed into the new Tribunals Ontario. The removal of CICB from this cluster and replacing it with a new model is likely intended to streamline and focus the function of the new tribunals agency.
The creation of the CICB in 1971 largely followed a British model created in 1964. It emerged from a recognition of the inadequacy of tort law and other legal schemes to provide adequate compensation for the victims of criminal injuries.
This is especially true for the victims of sexual and domestic violence, where compensation for victims has remained elusive. Unlike the systemic reforms initiated in the 1920’s for automobile accidents, injuries for sexual violence did not receive the same type of attention until this time. Claims relating to sexual assault have been steadily increasing over the past few decades, and are now the single largest category of claim.
The CICB awards money for people who are injured physically or psychologically due to a violent crime, providing compensation for expenses actually and reasonably incurred, including things like medical expenses, funeral expenses to $6,000, interim counselling up to $5,000, loss of wages up to $250/week due to total or partial disability, financial loss to dependents, pain and suffering, and child maintenance arising from a sexual assault. These are some of the most complicated and challenging cases in our legal system.
Despite the importance of these cases, Craig Brown and Melanie Randall outline in the Queen’s Law Journal some of the intrinsic problems in the CICB system,
Limits built into the scheme mean that the compensation goal is severely constrained. While the CICB has recognized that it may be “the only recourse for many victims of violent crime in Ontario,” it has also recognized that the scheme must be “viable” in that it has to operate “at the lowest cost to the taxpayer.”
The constraints are threefold.
First, compensation is available only to those injured by a proven crime. Thus, the CICB’s adjudication process must determine that there was a crime.
Second, compensation must be warranted, so the CICB must determine the severity of injury and the consequential financial need.
Third, and most important, compensation is significantly limited. The statutory maximum for a lump sum or onetime award payment is $25,000. Alternatively, periodic payments of up to $1,000 can be awarded, or a combination of lump sum and periodic payments. In the latter case, the lump sum payment cannot exceed $12,500 or half of the
maximum lump sum award.57 The maximum lump sum amount of $25,000 seems to be awarded only very rarely, and very few of the decisions have ever granted that amount for a single claim. According to the CICB’s 29th
Annual Report the average award is now only around $6,842.59.
The 2017-2018 CICB Annual Report indicates the held 3,567 hearings, and paid nearly $33 million in pain and suffering awards alone, comprising of 95% of all payments. Despite this, the amounts received by victims are still relatively small considering the ordeal they often endure.
Brown and Randall call for these injuries to be compensated in a comparable manner as other injuries suffered in society, such as industrial and automobile accidents, as victims of domestic violence typically face the same types of needs for compensation.
Instead, the interim system has capped pain and suffering awards at $5,000, which would have reduced the amounts paid in the last reported year to a comparable $18 million. By 2021-2022, the province estimates a savings of $30 million annually, from which they intend to re-invest $6 million a year into other victim services, such as the Civil Remedies Grant Program.
The shift to an administrative regime also prevents victims from having a clear route of appeal when claims might be denied. A small handful of cases involving judicial review have ensured the CICB continued to achieve the goals stated in the Act in a reasonable manner. The courts have also played an important role in clarifying and interpreting terms of the Act.
One example of this is in J.I.R.L. v Criminal Injuries Compensation Board, where the Divisional Court reviewed an appeal of a decision by the CICB in relation to the quantum of his claim.
Although the CICB awarded him the maximum $25,000 allowed under the Act, including $15,000 for pain and suffering, he claimed they had erred in its application of s. 25(1) by denying him periodic payments for loss of income based on other benefits he was receiving. The court upheld this claim, stating,
 ….Section 17(3) of the Act provides that in assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance. The limitation of J.I.R.L.’s claim based upon his having received Ontario Works and Ontario Disability Support Benefits, both of which would constitute “social assistance” benefits, is not a reasonable interpretation of the Act given the wording of this section.
[emphasis in the original]
The victim was on social assistance. He could not afford a lawyer, and was not represented in these proceedings. He was successful in this claim because of the oversight of the court. These types of protections are unlikely to be present in a simple administrative system, especially for victims who are already particularly vulnerable.
There have been other positive reforms to the CICB system over the years. In 2016, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) received Royal Assent, removing limitations under the Limitations Act, 2002 for claims based on sexual assault, misconduct of a sexual nature, or physical assaults within a intimate relationship or relationship of dependence. These changes emerged from recommendations in a 2015 report, It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment.
What this means is that these victims, who frequently do not come forward with a claim in a timely manner due to the nature of their trauma, could still proceed with CICB claims despite the passing of the two year limitations. The removal of limitations also means that victims can currently initiate their claim before the CICB before Oct. 1, 2019, even if it has been more than two years since the claim emerged, if they do not want to proceed under the VQRP+ model.
The greatest limitation appears to be that the new program requires applicants to have reported the incident to the police, and to apply within 90 days of an assault. Victims of sexual assault or violence rarely report or seek additional assistance within these time frames, suggesting that many people may actually get left out of the new VQRP+ model. Awareness of these services, and the role of lawyers and other providers bringing it to the attention of victims, will therefore be essential to its success.
Some of the advantages that the new model may offer is shorter wait times, including the possibility of financial support in the immediate aftermath of a crime. The faster supports are claimed by the government be possible due to integrated services and the reduction of administrative barriers. Published timelines include:
- Three business days for supports for immediate needs, funeral expenses and additional supports for survivors of human trafficking
- Five business days for counselling, residential treatment and associated transportation requests, and
- Ten business days for homicide survivor support and serious injury support.
The VQRP+ also introduces new funding of $20,000 for survivors of human trafficking, to provide residential in-patient treatment, reflecting an increase in sexual exploitation and forced labour crimes.
Service Delivery Organizations providing VQRP+ across Ontario include:
- Victim Services Toronto
- Victim Services of Peel
- Victim Services of York Region
- Ottawa Victim Services/Sevices aux victimes d’Ottawa
- Victim Services of Durham Region
- Victim Services of Middlesex County
- Victim Services of Haldimand-Norfolk-New Credit
- Victim Services of Waterloo Region
- Sudbury and Area Victim Services/Services aux victimes du Grand Sudbury
- Victim Services of Hastings, Prince Edward, Lennox & Addington Counties
- Victim Services of Sarnia-Lambton
- Chatham-Kent Victim Services
- Victim Services Bruce Grey Perth
- Victim Services of Leeds & Grenville
- Victim Services of Renfrew County Inc.
- Victim Services of Stormont, Dundas, Glengarry and Akwesasne
- Victims Services of Brant
- Timmins and District Victim Services
- Victim Services of Algoma
- Victim Services of Peterborough and Northumberland
- Niagara Victim Crisis Support Service
- Victim Services of Nipissing District
- Caledon\Dufferin Victim Services
- Victim Services of Windsor and Essex County
- Victim Services Wellington
- Thunder Bay and Area Victim Services
- Kawartha/Haliburton Victim Services
- Services aux victimes Prescott-Russell Victim Services
- Barrie and Area Victim Crisis Assistance and Referral Service
- District of Parry Sound Victim Crisis Assistance and Referral Service
- North Simcoe Victim Crisis Services
- Victim Services of Huron County
- Superior North Victim Services
- Muskoka Victim Services
- Victim Services-Lanark County
- Victim Services of Kingston and Frontenac
- Temiskaming & District Victim Crisis Assistance and Referral Service
- Victim Assistance Services of Oxford County
- Rainy River District Victim Services Program
- Wawa and Area Victim Services
- Victim Services Elgin
- Sunset Area Victim Crisis Assistance and Referral Service
- Manitoulin-North Shore Victim Crisis Assistance and Referral Services
- Hearst, Kap., S-R-F. Counselling Services/Services de Counselling de Hearst, Kap., S-R-F.
- Greenstone Victim Services
- Ah-Shawah-Bin Sioux Lookout/Lac Seul Victim Support Services
- Services aux Victimes Cochrane-Smooth Rock Falls Victim Services
- Hamilton Police Service
- Halton Police Services Board
- Nishnawbe Aski Nation (NAN)