Sutherland v. Director of Victims' Services (N.S.), (1998) 170 N.S.R.(2d) 73 (CA)

• Judge: Chipman, Jones and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 07, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 170 N.S.R.(2d) 73 (CA)

Sutherland v. Dir. Victims' Serv. (1998), 170 N.S.R.(2d) 73 (CA);

    515 A.P.R. 73

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. AU.047

Barry Sutherland (appellant) v. Director of Victims' Services (respondent)

(C.A. No. 143809)

Indexed As: Sutherland v. Director of Victims' Services (N.S.)

Nova Scotia Court of Appeal

Chipman, Jones and Cromwell, JJ.A.

July 7, 1998.

Summary:

Sutherland was paralyzed in a motorcycle accident resulting from the act of another person in committing an offence as listed in the Victims' Rights and Services Act. Sutherland was not wearing a helmet and did not have a licence. The Director of Victims' Services denied compensation. On appeal, the Utility and Review Board awarded Suth­erland compensation of $6861.64, but reduced the amount by 35% because of Sutherland's conduct. The Board refused compensation for loss of income and future medical needs and disallowed claims for certain other specific costs. Sutherland appealed both the general reduction of 35% and the disallowance of the other claims.

The Nova Scotia Court of Appeal allowed the appeal in part. The Board did not err in reducing the award 35% due to Sutherland's behaviour. The $12,000 limitation on peri­odic payments under the Act was intra vires. The Board did not err in disallowing certain future medical costs. However, respecting loss of income, the Board erred in crediting Workers' Compensation benefits against the $12,000 limit on benefits. The court remitted the claim for loss of income to the Board.

Crime Victims' Compensation - Topic 1403

Compensation - Entitlement - General - Maximum available - Appendix A of the Criminal Injuries Compensation Regula­tions provided that the maximum benefits payable by periodic payment for loss of income could not exceed $12,000 in peri­odic payments - A benefits claimant sub­mitted that the limitation was ultra vires - The Nova Scotia Court of Appeal held that the limitation was intra vires - See para­graphs 21 to 24.

Crime Victims' Compensation - Topic 1443

Compensation - Entitlement - Loss of income - Considerations - Section 7 of Appendix A to the Criminal Injuries Com­pensation Regulations provided that for the purpose of calculating compensation for loss of income a claimant was limited to a maximum of $1,000 per month less any income or income supplement, etc., from any source and the maximum amount for periodic payments was $12,000 - The Nova Scotia Court of Appeal interpreted s. 7 to mean that (1) there must be a pecuni­ary loss resulting from a disability affec­ting capacity for work; (2) the collateral benefits are to be deducted from the $1,000 limit (if the claimant receives more than $1,000 per month in benefits, no periodic payment is to be awarded for the period during which those collateral bene­fits are received); and (3) the $12,000 total limit meant "amounts actually paid by way of periodic payments" - The Board had denied a claim for loss of income on the ground that workers' compensation benefits in excess of $12,000 already received for another work-related injury precluded com­pensation because of the $12,000 cap - The court stated that "the Board erred in law when it decided that recovery of more than $12,000 from an income replacement source described in s. 7 of Appendix A to the Regulations precluded recovery for periodic payments up to the $12,000 limit for loss of income for a period when such benefits were no longer being paid" - See paragraphs 25 to 41.

Crime Victims' Compensation - Topic 1529

Compensation - Entitlement - Deductions - Workers' compensation benefits - [See Crime Victims' Compensation - Topic 1443 ].

Crime Victims' Compensation - Topic 1530

Compensation - Entitlement - Deductions - Victim's conduct - Contribution of, to injury - Section 11D(1) of the Victims' Rights and Services Act empowered the Director, in awarding compensation, to take into account "any behaviour of the person injured or killed that directly or indirectly contributed to that person's injury or death" - Sutherland rode a friend's motorcycle - Sutherland had no licence and was not wearing a helmet - Sutherland was seriously injured by an offence committed by another person - The Utility and Review Board deducted 35% from Sutherland's compensation as a result of his behaviour - The Nova Scotia Court of Appeal held that the Board did not err; s. 11D(1) was not limited to be­haviour that would constitute contributory negligence in tort law - It was within the Board's jurisdiction to consider imprudent behaviour which, while not the direct cause of injury, contributed to the injury in the sense that "but for" the behaviour, the injury would not have occurred - Here, Sutherland, being unlicenced and un­helmeted, should not have driven the motorcycle - But for his imprudent be­haviour, he would not have been injured - His behaviour indirectly contributed to his injury - See paragraphs 14 to 20.

Cases Noticed:

Nova Scotia v. Research Island AG (1994), 132 N.S.R.(2d) 156; 376 A.P.R. 156 (C.A.), refd to. [para. 12].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 13].

Nova Scotia (Attorney General) v. Williams (1996), 152 N.S.R.(2d) 291; 442 A.P.R. 291 (C.A.), refd to. [para. 13].

Sheehan v. Criminal Injuries Compensa­tion Board (1974), 52 D.L.R.(3d) 728 (Ont. C.A.), refd to. [para. 18].

Québec (Procureur général) v. Office na­tional de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 18].

Poholko v. Criminal Injuries Compensation Board (N.S.) (1983), 58 N.S.R.(2d) 15; 123 A.P.R. 15 (C.A.), refd to. [para. 20].

Manarey v. Northwest Territories (Com­missioner) et al. (1983), 46 A.R. 223; 150 D.L.R.(3d) 358 (N.W.T.S.C.), refd to. [para. 33].

Garet v. Criminal Injuries Compensation Ordinance, [1975] 5 W.W.R. 36 (N.W.T.S.C.), refd to. [para. 39].

Statutes Noticed:

Criminal Injuries Compensation Regula­tions - see Victims' Rights and Services Act Regulations (N.S.).

Victims' Rights and Services Act, R.S.N.S. 1989, c. 14, sect. 11D(1) [para. 14]; sect. 11G(1) [para. 22].

Victims' Rights and Services Act Regula­tions (N.S.), Criminal Injuries Compen­sation Regulations, Reg. 24/94, Appendix A, sect. 7 [para. 28].

Authors and Works Noticed:

Burns, Peter, Criminal Injuries Compensa­tion (2nd Ed. 1992), pp. 288, 289 [para. 39]; 311 [para. 19].

Counsel:

Jean McKenna, for the appellant;

Michael T. Pugsley, for the respondent.

This appeal was heard on May 25, 1998, before Chipman, Jones and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On July 7, 1998, Cromwell, J.A., delivered the following judgment for the Court of Appeal.