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CRIMINAL INJURY COMPENSATION - Appeals and judicial review - Entitlement

Tuesday, September 19, 2017 @ 3:07 PM  

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Appeal by Johnson from a decision of the Alberta Criminal Injuries Review Board (Board) denying him benefits for injuries he suffered as a result of a crime. In 2008, the appellant was stabbed in the back with a pair of scissors by his girlfriend. His wound was not serious. However, the appellant did not take the prescribed antibiotics and he developed necrotizing fasciitis, or “flesh-eating disease”. As a result of the infection, he was hospitalized for several months and had to undergo numerous surgeries. He was left with permanent scarring and was disabled. Approximately two years later, the appellant filed a claim for compensation from the Board. The claim was initially denied because the appellant had a criminal record. The decision was rescinded on appeal because the Board wrongly considered the appellant’s criminal convictions, which occurred when he was a youth. At a new hearing, the appellant’s claim was denied because he had failed to properly respond to his injuries and because the initial injury, the puncture would, was so minor that it fell below the minimum level of injury that was compensable under the Act. The appellant’s appeal was dismissed and he applied for judicial review. Subsequently, the Board rescinded its decision. It went on to conclude that the appellant had taken reasonable steps to mitigate his injuries by attending hospital, and remitted the matter to the Director for a determination as to whether the infection arising from the stab wound was compensable. The Director again denied benefits because the appellant had accumulated a significant criminal record as an adult and because the initial injury was below the minimum award amount for a benefit. The Director’s decision indicated that an infection was not an injury that could be considered under the relevant Schedule to the Victims of Crime Regulation (Regulation). The Board confirmed the decision, agreeing that the initial wound was not so significant as to be compensable and that the development of flesh-eating disease, a complication arising from the wound, was also not eligible for compensation. The appellant appealed arguing, among other things, that the Board erred in finding that the infection was not causally linked to the initial stab wound and that it applied the Regulation incorrectly.

HELD: Appeal allowed. The Board accepted that the infection was causally connected to the stab wound. However, in finding that the appellant’s injury was non-compensable, it appeared to have overlooked s. 2 of the Regulation which provided that complications or impairments arising from the initial injury or treatment were considered part of the injury award. The Legislature had recognized that not every injury or complication could be contemplated and expressly accounted for in the Schedule to the Regulation and therefore directed that, when appropriate, the nearest in kind to the unlisted injury should be applied to calculate the amount of compensation. By failing to consider those relevant statutory provisions, the Board erred in law. Furthermore, while convictions entered after an injury were to be taken into account in deciding whether to award compensation, the erroneous rejection of the appellant’s initial claim was not considered in the exercise of discretion.

Johnson v. Alberta (Criminal Injuries Review Board), [2017] A.J. No. 919, Alberta Court of Appeal, R.L. Berger, P.W.L. Martin and P.A. Rowbotham JJ.A., September 7, 2017. Digest No. TLD-Sept182017004