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Criminal Law - Criminal injury compensation - Appeals and judicial review - Entitlement

Thursday, March 09, 2017 @ 7:00 PM  

Appeal by Laursen from the dismissal of his application for judicial review of the refusal to award him lost earning benefits. On February 17, 2011, Laursen was viciously beaten during the course of an apparent robbery. He suffered severe head trauma and was hospitalized. On his admittance to hospital, he tested positive for cocaine and/or amphetamines. In the years preceding the assault, he had struggled with addiction issues, polysubstance abuse and diabetes. He had been hospitalized for a relapse just prior to the assault, having been discharged and referred to detox on February 16, 2011. Laursen acquired a brain injury from the assault. As a result, he experienced permanent deficits of mobility, mood, speech and cognition and his prognosis was poor. He was permanently disabled from any physical work, including a position as House Monitor at a recovery facility that he was scheduled to commence April 2011. Laursen applied for and received benefits under the Crime Victim Assistance Act, but had been denied an award for lost earning capacity. The basis for the decision was that Laursen was not employable due to the effects of his latest drug relapse. Laursen applied for judicial review of one of the decisions denying the lost earning capacity benefits. The Director argued that the decision was reasonable and that the application for judicial review was statute-barred. The chambers judge found that the decision not to award an amount for lost earning capacity was reasonable, as none of the information before the Director indicated that Laursen was physically and mentally capable of being employed or self-employed on the day he was injured. Laursen appealed the decision of the chambers judge arguing that the Director’s determination that he was unemployable at the time of his injury was unreasonable. He also argued that his judicial review application was not statute-barred.

HELD: Appeal allowed. There was a single reasonable interpretation of “employable” that required the Director to determine whether the applicant had the intent and ability to become employed in the future. The fact that Laursen was not working on the day of his injury was not an absolute bar to recovery. The suggestion that Laursen’s offer of employment at the recovery facility was invalidated due to his polysubstance abuse was incorrect. The evidence indicated that employment at the recovery facility would have been extended to Laursen if he was clean and sober by the start date of employment in April 2011. The evidence showed that the Director did not take into account Lauren’s future employment capacity, had he not been assaulted. Having failed to test Laursen’s potential for future employment, the Director’s decision was rendered unreasonable. Given that Laursen had earned some income in the past, he had some capacity to earn income. Furthermore, while he was not gainfully employed at the time of his injury, he intended to be employed in the future, as he had a job that was to start in April 2011. Laursen’s judicial review application was not statute-barred by the passage of time because s. 11 of the Judicial Review Procedure Act provided relief from the statutory limitation period. The issue of Laursen’s entitlement to lost earning capacity benefits was remitted back to the Director for redetermination.