COMMISSIONER'S DIRECTIVE

CLAIMS AGAINST THE CROWN AND THE OFFENDER ACCIDENT COMPENSATION PROGRAM

Policy Bulletin 155

POLICY OBJECTIVE

1. To provide direction for fairly and expeditiously resolving:

1. claims and ex gratia payment requests for damage to, or loss of, property belonging to inmates and to employees of the Correctional Service of Canada (CSC); and
2. offender accident compensation claims.

AUTHORITIES

2. Sections 84 and 121 to 144 of the Corrections and Conditional Release Regulations;
Sections 3, 9 and 32 of the Crown Liability and Proceedings Act;
CSC's Financial Signing Authorities document;
Treasury Board Policy on Claims and Ex gratia Payments;
Treasury Board Risk Management Policy.

CROSS-REFERENCES

3. Commissioner's Directive 081 - Offender Complaints and Grievances;

Commissioner's Directive 084 - Inmates' Access to Legal Assistance and the Police;

Commissioner's Directive 090 - Personal Property of Inmates;

Commissioner's Directive 566-7 - Searching of Inmates;

Commissioner's Directive 566-9 - Searching of Cells, Vehicles and Other Areas of the Institution;

Commissioner's Directive 737 - Inmate-Operated Business Enterprises;

Commissioner's Directive 760 - Leisure Activities;

Commissioner's Directive 860 - Inmate's Money;

Guidelines 234-1 - Claims Administration Instructions;

Guide to Accident Compensation for Federal Offenders.

DEFINITIONS

4. "Claim" means the amount due, or alleged to be due, or the action taken regarding property damages sustained by a claimant. It also means a request for compensation to cover losses, expenditures or property damages sustained by a claimant, including requests or suggestions that the Crown make an ex gratia payment. It does not include the following:

1. claims, or ex gratia payment requests, in relation to circumstances that are addressed in another government instrument; and
2. claims submitted under the provisions of the Corrections and Conditional Release Regulations relating to compensation for death or disability.

5. "Claimant" refers to an "employee" and an "offender/inmate", except for the purposes of offender accident compensation claims where it has the same meaning as in the provisions of the Corrections and Conditional Release Regulations relating to compensation for death or disability.

6. "Claims administrator" means the person responsible for coordinating claims.

7. "Employee" refers to any person employed by the CSC. It does not include volunteers or persons engaged under contract for services.

8. "Ex gratia payment" refers to a benevolent payment made by the Crown under the authority of the Governor in Council. The payment is made to anyone in the public interest for loss or expenditure incurred for which there is no legal liability on the part of the Crown.

9. "Human Resources Development Canada" means the person who is responsible for the Federal Workers' Compensation Service of the Department of Human Resources Development or a person who is designated by that person.

10. "Inmate" has the same meaning as in section 2 of the Corrections and Conditional Release Act, and also includes:

1. in some circumstances, a person released to a community residential facility; and
2. an offender who resides in a community residential facility (as a condition of release) that is readmitted to a penitentiary following the suspension of a release.

11. "Offender" has the same meaning as in section 2 of the Corrections and Conditional Release Act, and also includes a former offender.

RESPONSIBILITIES

12. The Assistant Commissioner, Corporate Services shall:

1. monitor the resolution of inmate and employee claims on an ongoing basis; and
2. ensure that there is a person assigned to:
   1. provide assistance in relation to claims and the Offender Accident Compensation Program, and
   2. fulfill the Service's responsibilities under the Offender Accident Compensation Program.

13. The Regional Deputy Commissioner shall be responsible for ensuring that:

1. the National Claims Coordinator is provided, within five working days of the end of each fiscal quarter, with the following:
   1. the region's report concerning any claim for which a decision was not sent to a claimant, in writing, within 90 calendar days of the claim's initial receipt by the Service,
   2. the reasons for the delay in processing a claim, and
   3. the region's recommendations for addressing problems in sending decisions on claims within the 90-day timeframe; and
2. the concerned sites develop action plans to address the recommendations.

14. The Institutional Head shall ensure that the Guide to Accident Compensation for Federal Offenders is available in the institution's library and Health Care Centre.

15. With the exception of offender accident compensation claims, the Regional Deputy Commissioner, Institutional Head and District Director shall monitor on an ongoing basis, as applicable:

1. the resolution of claims;
2. the quality of the decisions rendered on claims;
3. the quality of the responses provided to claimants regarding the decisions rendered on their claims;
4. the quality of the investigation reports prepared on claims;
5. the implementation of the action plans that are developed by sites in response to the Regional or National Headquarters' recommendations for addressing problems in sending a decision on a claim to a claimant, in writing, within 90 calendar days of a claim's initial receipt by the Service;
6. the effectiveness of the action plans for ensuring full compliance with the 90-day claim processing timeframe; and
7. the compliance with the requirements of this directive, the Claims Administration Instructions, and other internal and central regulatory instruments concerning claims.

CLAIMS AND EX GRATIA PAYMENT REQUESTS - PROPERTY OF INMATES AND EMPLOYEES

Timeframes for Responding to a Claim

16. The Service shall send the claimant a decision on the claim, in writing:

1. within 60 calendar days of the initial receipt of the claim, unless there are exceptional circumstances; and
2. no later than 90 calendar days from the initial receipt of the claim, unless:
   1. there remains exceptional circumstances that are out of the control of the Service,
   2. a required legal opinion could not be requested prior to the 60-day timeframe or could not be provided in time to meet the 90-day timeframe, or
   3. the subject of the claim is also being processed through outside legal proceedings, and the results of these proceedings were not provided to a decision-maker in time to meet the 90-day timeframe.

17. Where the decision on a claim is not sent within 90 calendar days, the head of the CSC site responsible for processing the claim shall inform the claimant, in writing, of:

1. the reasons for the delay; and
2. the tentative date by which a decision on the claim should be made.

Outside Legal Proceedings

18. When the subject matter of a claim for lost or damaged property is also being processed through outside legal proceedings, the response to the claim shall be deferred until the decision on the court proceedings is rendered or the proceedings are abandoned.

19. The head of the CSC site responsible for processing the claim shall inform the claimant, in writing, of the decision to defer the response to the claim.

20. Once advised by the claimant that the outside decision has been made, or upon receipt of documentary evidence that the court proceedings have been abandoned, the Service's decision-maker shall respond to the claim while taking into account the decision made through the outside legal proceedings.

Ex Gratia Payments

Personal Effects Kept at the Work Site

21. The personal effects that may be compensated include:

1. clothing;
2. prescription eyeglasses and safety glasses;
3. non-prescription sunglasses (compensation not to exceed $150);
4. watches (compensation not to exceed $200, inclusive of the watchband);
5. work-related articles (e.g. books and tools) which are not made available free of charge to the employee or the inmate; and
6. wallets and purses, as well as their contents, if held by the employee or if kept in the most secure location available to the employee when it was not practical for the employee to carry these items. However, compensation for the contents, including cash, should not exceed $200.

22. Compensation for the effects could be authorized when the decision-maker considers that the effects are reasonably related to the performance of the employee's duties, or the inmate's work program, at the time of the loss or damage.

Exclusions

23. In no case shall an ex gratia payment be made:

1. to an inmate for property damaged or lost as the result of a riot;
2. when the Service is liable for the damages (in this case, the claim shall be processed as a claim against the Crown);
3. when there are other possible sources of compensation; and
4. when the payment would circumvent, or expand on, the provisions of a governing instrument (e.g. an act, regulation or Treasury Board policy).

24. Specifically excluded from compensation are jewelry (including engagement and wedding rings), electronic equipment, electrical or battery-operated appliances, ornaments and decorations, and housewares. Employees are responsible for ensuring that these items are covered under their private insurance policies.

Exception

25. A decision-maker may authorize an ex gratia payment for an excluded item when CSC's Departmental Legal Services Unit is of the view that the item was reasonably related to the performance of a claimant's duties at the time of the loss or damage.

Claims Against the Crown

Offender Claims

26. An inmate is responsible for the safekeeping of the property in his or her possession.

27. When the Service is responsible for the safekeeping of an offender's property, the Service must demonstrate that:

1. it took all reasonable steps to protect the offender's property;
2. it returned the property to the offender or explained why it was not returned; and
3. it cannot be held liable for property that was already damaged when the Service received it for safekeeping.

Discretionary Decision-Making

28. Where the liability of the Service for the loss of, or damage to, an offender's personal property cannot be clearly ascertained, the offender's claim shall be accepted when:

1. the claimed offender property is recorded on the offender's property record; or
2. it would have been reasonable for the offender to own the claimed property that was not required to be recorded on a property record (such as, canteen items).

Perishable and Consumable Effects

29. Claims regarding perishable and consumable effects shall normally not be accepted. A settlement offer may only be made for these items when the circumstances of the loss or damage justify the payment of compensation (e.g. the property could not have been consumed or used prior to its loss or damage).

Claims From Offenders at Community Residential Facilities

30. When a claim has been submitted by an offender who resides in a community residential facility (CRF) or following the suspension of his or her release, the Service shall disallow the claim when it cannot be held liable for the property's loss or damage, and inform the claimant of:

1. the reasons for denying the claim;
2. his or her right to submit a claim to the CRF operator; and
3. his or her right to submit a first level grievance - concerning the decision rendered by the CRF operator - to the District Director of the parole office supervising the offender at the time of the incident that gave rise to the claim.

Settlement Offers for Accepted Claims

Ex Gratia Payments

31. Where a proposed ex gratia payment exceeds the authority limitation indicated in the Service's Financial Signing Authorities document, the Regional Deputy Commissioner shall forward the claim and all related documents to the Commissioner, through the Assistant Commissioner, Corporate Services, for a decision.

32. The amount of the ex gratia payment to a claimant shall not be reduced when:

1. the loss or damage resulted from the actions of an offender; or
2. the claimant's acts or omissions did not contribute to the loss or damage.

Employee Property

33. The employee shall be compensated on the basis of the full cost to replace the personal effect with an effect of the same or equivalent quality, or the reasonable cost to repair the effect, whichever is the most appropriate. Amounts reimbursed by another source will be deducted where applicable.

Offender Property

34. The total amount of compensation offered to an offender shall not exceed the dollar limits indicated in CD 090, "Personal Property of Inmates", for the specified property. The dollar limits shall not be combined to increase the amount of a settlement offer to a claimant.

35. The Service may, instead of offering monetary compensation, consider replacing the claimed effect with an identical one. Where an identical item is not available, an item of equivalent quality may be offered if the offender agrees, in writing, to accept the substitute item in lieu of money. The full cost to replace the effect should not exceed the monetary settlement offer that would be made for the item.

36. The property record used for determining a settlement offer for a claimed item shall be the one that indicated the value that was assigned to the item prior to the time of the loss or damage occurred.

37. Damaged property that cannot be repaired, and for which a claimant has received the allowable maximum compensation, normally becomes the property of the Crown and should be disposed of in accordance with the Treasury Board policy entitled "Disposal of Surplus Moveable Crown Assets".

38. An offender should not be compensated for property that is not listed on his or her property record, unless:

1. the property was not required to be recorded on a property record in accordance with CD 090, "Personal Property of Inmates"; or
2. the offender can demonstrate that efforts were made to have the item recorded.

39. The offender should be compensated on the basis of the lesser of the following amounts, as applicable:

1. the amount claimed in the Inmate Claim for Lost or Damaged Effects (form CSC 561);
2. the value that was assigned in property records such as the following:
   • form CSC 514 - Inmate Personal Property Record (Cell and Stored Effects),
   • form CSC 513 - Inmate Personal Property Record (Valuables and Important Documents),
   • form CSC 502 - Inmate Personal Property Record (Money and Securities),
   • the hobby craft permit, and
   • the record of tools, equipment and goods resulting from the operation of the business, in accordance with CD 737, "Inmate-Operated Business Enterprises";
3. the cost of repairing the effect (except completed hobby craft items), including shipping and handling costs and taxes;
4. the cost of repairing a completed hobby craft item, including shipping and handling costs and taxes, on the condition that the offender agrees, in writing, to the repairs;
5. the maximum dollar value allowed for the item in a Commissioner's Directive or related direction; or
6. the full cost to replace the effect with another of the same or equivalent quality, including shipping and handling costs and taxes.

40. Where an offender's property record clearly indicates that no value was assigned to a claimed item, no settlement offer shall be made for the item.

41. Where the offender's property record does not clearly indicate an assigned value for a claimed item (e.g. a blank entry or a pen stroke in the property record's "Total Value" column), the claimed property's value is to be determined on the basis of the following:

1. For property other than hobby craft, the lesser of the following:
   1. the amount claimed in the Inmate Claim for Lost or Damaged Effects (form CSC 561);
   2. the cost of repairing the effect, including shipping and handling costs and taxes;
   3. the maximum dollar value allowed for the item in a Commissioner's Directive or related direction; or
   4. the full cost to replace the effect with another of the same or equivalent quality, including shipping and handling costs and taxes.
2. The settlement offer for completed hobby craft items should not exceed the lesser of the following amounts, as applicable:
   1. the selling price of the item that was established in accordance with the procedures stated in a Commissioner's Directive or related direction; or
   2. where no selling price has been established, the greater of the following, as applicable:
      • the appraised value of the completed item,
      • the actual sale price (not the asking price) of a similar item produced by the offender, or
      • the cost of the material used in the item's construction plus 25%.
3. The settlement offer for uncompleted hobby craft projects should not exceed the greater of the following amounts, as applicable:
   1. a percentage of the appraised potential value of the item, had it been completed, which corresponds to the extent the item is completed (e.g. for a painting that is 75% completed, a settlement offer of 75% of the painting's potential selling price would be allowed);
   2. a percentage, equivalent to the extent the item was completed, of the actual selling price (not the asking price) of a similar item produced by the offender; or
   3. the cost of the material used in the item's construction plus 25%.
4. The settlement offer for hobby craft raw materials and tools should not exceed the lesser of the following amounts:
   1. the amount claimed in the Inmate Claim for Lost or Damaged Effects (form CSC 561);
   2. the purchase price of the raw materials and tools; or
   3. the replacement cost of the raw materials and tools.

42. The extent to which a hobby craft article is completed shall be determined on the basis of statements obtained from the offender, the Hobby Craft Officer and witnesses. The offender's statement shall be accepted if the degree of the article's completion cannot be ascertained from alternate sources.

43. An appraisal, for the purpose of establishing the value of hobby craft property, shall be made by a qualified third party from inside or outside the institution, and be arranged and paid for as follows:

1. by the offender if it is requested prior to the submission of the claim (the cost will be reimbursed, as part of the claim's settlement, if the claim is accepted and if the appraisal cost was claimed by the offender); or
2. by the institution that processed the claim if an appraisal is required, after a claim is accepted, to determine a settlement offer.

Decisions on Claims

44. Decision-makers must ensure that the information upon which they act is reliable and persuasive. Wherever information or evidence is presented to a decision-maker, he or she must make a determination concerning the source of that information, and decide whether or not it would be fair to allow the information to affect his or her decision.

45. The Service shall record the rationale for the decision taken on the claim, and preserve the claim and all the evidence gathered during the investigation. The documents concerning the claim shall only be disposed of in accordance with the government's policies.

46. The Service's written response to the claimant shall:

1. provide relevant and complete information explaining the compensation being offered or why the claim was denied;
2. indicate the claimant's right to consult an independent legal counsel, at his or her expense, for advice or to make representations with respect to the claim; and
3. where a claim has been accepted, include a completed Release document (form CSC 536) for the claimant's review and signature, except when not required by the Claims Administration Instructions.

Payment of Claims

47. The responsibility for the claim's payment usually rests with the site(s) that rendered the decision to accept the claim. However, when a decision to accept a claim is made at Regional or National Headquarters in relation to an incident occurring at, or sponsored by, another site, the responsibility for the payment rests with the CSC site(s) responsible for investigating the claim's circumstances.

48. Where a claimant's grievance of the decision rendered on a claim is upheld, any required payment shall be made by the CSC site(s) responsible for investigating the claim's circumstances.

49. Claim settlement payments to employees shall usually be made by cheque, and to inmates in accordance with the requirements of CD 860, "Inmate's Money".

Reopening of Claims

50. Where a claimant wishes to reopen a claim for which he or she has previously signed a Release document (form CSC 536), the Service shall:

1. refuse the request when the claim decision had been grieved;
2. consider the request when:
   1. the claim decision was not grieved, and
   2. any of the following conditions apply:
      • there are humanitarian reasons for reopening the claim,
      • the claimant was illiterate and was not advised of the consequences of signing the Release document, or
      • the claimant had more than one claim under process by the Service and the Release document did not clearly identify the claim that was being addressed.

51. The authority to reopen a claim for consideration rests with the decision-maker that made the initial decision on the claim.

52. Where a person's petition to reopen a claim is accepted, the Service shall request that the claimant submit any additional evidence in support of the claim prior to rendering a decision.

Abandoned Claims

53. A claim may be considered abandoned when the claim decision cannot be remitted to the claimant (or to the claimant's next-of-kin or legal representative) two years after the Service's last communication with the claimant. When an offender claimant is unlawfully at large, the claim decision should be placed on the offender's claim file.

OFFENDER ACCIDENT COMPENSATION CLAIMS

Redirecting Claim Submissions

54. When a claimant's completed Inmate's Application for Compensation (form LAB 1076) is submitted to the Service instead of Human Resources Development Canada (HRDC), the Service shall immediately redirect it to HRDC.

Documenting the Claim

55. Institutional officials shall, at the earliest opportunity, respond to HRDC's or the National Claims Coordinator's requests for:

1. the Report of Inmate Injury (form CSC 46), and/or other records on the accident;
2. the completion of forms relating to a claim for compensation [the HRDC forms that require completion are the Supervisor's Report of Accident (LAB 1075) and the Attending Physician's Report of Accident (LAB 1073)];
3. medical information, on the condition that the claimant provides an authorization, in writing, for the information disclosure; and
4. information that is required for the purpose of assessing whether the claimant meets the accident compensation program's admissibility requirements for the consideration of the payment of compensation.

Medical Assessments from Independent Medical Practitioners

56. When HRDC submits a request to an institution for an independent medical assessment of an offender, for the purposes of determining a disability, the following steps shall be taken:

1. the institution or HRDC shall make the appointment with the medical practitioner;
2. the institution shall, at its cost, make all necessary arrangements with respect to security and shall transport the offender to and from the appointment; and
3. where an appointment must be cancelled, the responsible institutional official shall:
   1. when the Service scheduled the appointment, inform the medical practitioner and HRDC of the cancellation, and
   2. when HRDC scheduled the appointment, inform that department of the necessity of cancelling the appointment.

Original signed by
Lucie McClung, Commissioner,

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