Baffling Decision on Criminal Compensation Leads to New Hearing

Update:

Victoria Park Bus with front-end bicycle rack, carrying two bicycles.
TTC Bus driver Aston Reid’s practicing psychiatrist with 47 years of clinical experience gave evidence that “if the assaults did not occur, Mr. Reid would still be working and would have worked to age 71, but he finally could not cope any longer and stopped working on November 14, 2011” at the age of “only 60 years old.” He lost eleven (11) years of service as a result of the assault.

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Did an incident where a passenger threatened a bus driver with a knife affect him psychologically or not? A ruling by the Criminal Injuries Compensation Board had it both ways.

Did an incident involving a passenger with a 12-inch knife exacerbate TTC bus driver Aston Reid’s psychological issues, or have no effect at all?

That was the question before the Criminal Injuries Compensation Board (CICB), a provincial body that offers financial compensation to victims of violent crime and to family members of deceased victims.

Board member Virginia Morra concluded, in an Aug. 28, 2014 decision, that Reid was eligible to receive $1,900 for loss of income for the period of Nov. 14, 2011, to Jan. 6, 2012, when he was receiving disability benefits.

Virginia Morra Adjudicator, Criminal Injuries Compensation Board (CICB) working for the Ministry of the Attorney General. She was first appointed to the CICB as an adjudicator on June 6, 2007. Her term of her current appointment runs from June 5, 2012 to June 5, 2017 inclusive. Her previous employment was with Victim Services of Peel and Electric Entertainment. Education: University of Windsor. Source: LinkedIn.

She wrote that the incident with the passenger “likely exacerbated all other issues (Reid) was coping with.” He had already received nearly $6,500 from the board for pain and suffering and the cost of travelling to treatment.

But Morra denied compensation for lost income for the period after Jan. 6, when Reid took early retirement, saying she agreed with a separate Workplace Safety and Insurance Board report that found that Reid’s psychological issues were not tied to the incident, but to divorce proceedings.

So did the incident, in which the passenger threatened Reid with the knife and was later convicted of assault with a weapon, affect him psychologically or not?

After looking at Morra’s decision, a three-judge panel of the Divisional Court was at a loss to understand her reasoning. They found Morra did not give “articulated reasons” and ordered late last month that Reid have a new hearing before a different panel of the board.

“It is impossible to reconcile the two decisions of the board — one finding that Mr. Reid’s psychological difficulties were exacerbated by the assault and deserving of compensation and the other finding that those same psychological difficulties were unrelated to the assault,” the judges wrote, further adding:

“It is not possible to conclude which of the board’s findings are rationally supported. It is necessary for the entire issue of compensation for wage loss to be considered afresh.”

The court case offers a rare glimpse into the thought process of provincially appointed board members who regularly decide whether victims of crime are deserving of compensation.

Full decisions are almost never published — the board includes a summary of rulings in its annual report without identifying information — and while hearings are usually open to the public, the board does not post a list of upcoming proceedings.

“The board does not comment on its decisions. Our decisions speak for themselves,” said Whitney Miller, spokeswoman for Social Justice Tribunals Ontario, a cluster of adjudicative bodies that also includes the Human Rights Tribunal and Landlord and Tenant Board.

Victims of crime look for justice at the Criminal Injuries Compensation Board (CICB) and are often disappointed by the decisions of the CICB.
Victims of crime look for justice at the Criminal Injuries Compensation Board (CICB) and are often disappointed by the decisions of the CICB.

“CICB does not routinely publish its decisions, to protect victims’ privacy. There could be a chilling effect on victims coming forward with their claims if their information was made public, and there are often safety concerns for victims of domestic violence.”

The CICB is almost entirely funded by the provincial government. About 5 per cent of its funding comes from victim surcharges imposed on convicted criminals at their sentencing.

“It’s important that even if it’s not exactly like a court, that the process (before the board) is fair and that the reasons are justified,” Reid’s lawyer, Shalom Wise, told the Star.

“These boards and tribunals were designed in more contemporary times to be different than courts. But it’s a balancing act: While they need to be quicker, efficient and creative, people who go before them must also expect balance, fairness and a certain amount of transparency.”

The court found that in arriving at her decision to deny compensation, Morra “relied exclusively” on the WSIB’s conclusions which were based on medical reports that she did not review herself.

She “merely quoted from (the medical reports) based on the quotes set out in the WSIB report,” the judges noted. “A further difficulty,” they said, is that Morra did have before her reports from psychiatrists that backed up Reid’s position, but she did not give any reasons for rejecting them.

Criminal Lawyers’ Association president Anthony Moustacalis, who has argued cases before the CICB, said he would like to see more openness in the process, including the publication of decisions.

“I would expect that the Liberal government, which has declared that transparency is an important principle of their government, may want to consider increasing the openness of the process while at the same time being respectful to victims,” he said.

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