In 1972, the Quebec Parliament passed a law allowing victims of criminal offence to receive compensation from the state for the harm that may result.
What are the elements taken into consideration when an application is sent to IVAC, when a victim of a crime is unemployed at the time of the unlawful act?
The victim’s employment status
First, it is necessary to establish the professional status of the victim of the crime in this case. Thus, each victim is first qualified as either “with” or “without” employment.
These include “employed, unemployed” (i.e. unemployed, full-time students, etc.) as well as “persons outside the labour market” (i.e. stay-at-home spouses, retirees, etc.). It is therefore a simple question of fact at this stage. Indeed, the only question is the status of the victim of the crime on the day of the event.
Moreover, in cases where IVAC wrongly assigns the victim a status of unemployed, it is up to the victim to contest the decision as well as to prove his status. To do this, it is possible to present any document that can prove the status of the victim on the day of the accident, for example, a pay statement that covers the period including the day of the accident.
The consequences of classifying the unemployed
The qualification of unemployed is not without consequences on the victim’s case. Thus, without going so far as to deprive the victim of crime of any compensation, this classification nevertheless modifies, on the one hand, the method of assessing the victim’s salary and, on the other hand, the conditions for granting compensation. These two factors are at the root of many procedures for challenging decisions in IVAC cases.
Assessment of the victim’s salary
At the outset, the courts state that if a victim is entitled to compensation, the amount of compensation is calculated according to his or her status on the day of the event. Thus, the assessment of the victim’s salary base, later used to determine the compensation to which the victim is entitled, differs depending on whether the victim is employed or unemployed.
On the one hand, in the case of the victim with employment, the assessment is rather simple. Indeed, it is only a question of considering the real earnings of the victim during the months preceding his accident. Thus, for a victim at work, compensation generally corresponds to 90% of the net income derived from his employment contract, provided however that he proves a disability resulting from the criminal act in question.
However, it is understandable that the situation is slightly complicated when the victim is unemployed at the time of the accident, since it is then impossible to estimate his salary on the basis of his actual earnings. Thus, the salary of the unemployed victim is generally set at the minimum wage in force on the date of his accident. In short, for an unemployed victim, the compensation corresponds to 90% of the net income from the minimum wage in effect at the time of the event.
However, the law also provides for alternative evaluation methods. Indeed, even if the majority of decisions apply IVAC’s policy and set the minimum wage as the wage base for a person who was unemployed at the time of the facts, the Act allows other options to be considered.
Thus, it is necessary to select the method that best corresponds to the reality of the victim at the time of the accident. For example, it is possible to establish the wage base of the unemployed person based on the 12-month period preceding the accident, as long as the victim was employed for part of that period.
For example, a victim of crime recently challenged a decision on her case that characterized her as unemployed with a minimum wage base. However, this procedure allowed him to establish his salary base at $ 20 per hour, following proof of his undeclared work during the 12 months preceding his accident. The Tribunal also found that this salary base would be fairer and more equitable for the applicant since it was based on his actual situation. Therefore, it is understood that the commission responsible for establishing the salary base of the unemployed person may use any method appropriate to the circumstances, in order to establish the base that best corresponds to the victim’s actual situation.
It is also important to note here that the Crime Victims Compensation Act is a social remedial law whose objective is to compensate innocent victims of crime. Therefore, it deserves a broad and generous interpretation in favour of the victim. This same factor also militates in favour of the use of the judge’s discretion, which can correct cases where IVAC uses an assessment method that does not quite correspond to the victim’s reality.
Conditions for granting compensation
The courts do not hesitate to point out that in order to be entitled to compensation, it must still be demonstrated. Thus, the victim only has to prove a disability in connection with the declared accident.
Therefore, the only prerequisite for the award of compensation for the unemployed person is whether the victim is unable to perform the majority of his activities of daily living (ADL) and activities of domestic living (DSA), because of the criminal act.
Examples include activities such as personal hygiene, cleaning and maintaining property, cooking, shopping, etc. On the other hand, expert evidence may prove to be necessary at this stage. In short, the unemployed victim is entitled to compensation only if he proves that he is unable to perform the majority of his ADL and DSL because of a physical or psychological consequence of his accident.
Alternatively, the ability to continue education is instead taken into account when the unemployed victim is studying at the time of the accident. Thus, it is then up to the victim to show that he or she missed classes or was unable to register for another session because of his or her condition, which must be related to the criminal event.
Finally, for the person with employment, it is more necessary to determine whether he or she is unable to return to work because of the consequences of the crime of which he or she is the victim. Thus, a victim of crime who cannot return to work because of sequelae caused by an event distant or close to the reported accident is not eligible for compensation.
In short, the onus is on the applicant to prove that he is unable to return to his employment because of the physical or psychological fallout of the crime of which he is the victim. To do this, expert evidence in orthopedics, neurology, psychiatry or any other relevant field can, again, be decisive.
Thus, a medical assessment which reveals that the victim should refrain from lifting loads weighing more than 2 kg clearly militates in favour of his inability to perform his job as a home nurse’s assistant, which consists in particular in transferring people with loss of autonomy from their chair to their bed. Similarly, the victim diagnosed with psychological disorders resulting from their accident, such as post-traumatic stress disorder, may also be declared unfit to return to work.
In short, the courts confirm it: the Act does not specify any criteria other than the presence of a disability for a person to be entitled to compensation. Thus, the absence of a prescription to stop studies in relation to the diagnosis of the injury related to the criminal event, for example, cannot be invoked against the victim who makes a claim for compensation from IVAC.
To conclude, we understand that the qualification of unemployed in his file at IVAC is far from corresponding to a death sentence. The unemployed victim of crime is entitled, like any other person, to compensation for the harm he or she suffers. However, the method of assessing the victim’s salary and the conditions for granting compensation differ somewhat depending on the qualification used. Therefore, it is important to prepare the appropriate evidence in order to successfully challenge a IVAC decision.
Do not hesitate to contact us if you need help to mount your dispute.