Jeffrey S. Clarke

Three injured workers appealed convictions or acquittal reversals under section 149(2) of the Workplace Safety and Insurance Act, 1997, which makes it an offence to wilfully fail to inform the Workplace Safety and Insurance Board of a material change in circumstances affecting entitlement to benefits.

The Court of Appeal clarified the mens rea requirement for this offence, holding that the Crown must prove the accused knew of a material change, intended not to inform the Board, and either intended to receive unentitled benefits or foresaw such receipt as substantially certain.

The court restored one acquittal and ordered new trials for two convictions.

The appellant, injured in 1997 while unloading goods from a truck, brought a civil action against the Workplace Safety & Insurance Board and the Workplace Safety & Insurance Appeals Tribunal seeking compensatory damages of $1,710,455 and punitive damages of $15 million.

The respondents moved to dismiss for lack of jurisdiction and to strike the pleadings as disclosing no reasonable cause of action.

The motion judge granted the motions, holding that the Superior Court lacks jurisdiction over claims against these bodies and that relief must be sought through judicial review.

The appellant appealed, arguing the motion judge erred in dismissing the claim for lack of jurisdiction and in striking the pleadings for failing to disclose a cause of action for bad faith or misfeasance in public office.

The Court of Appeal dismissed the appeal, holding that the statutory scheme under the Workplace Safety and Insurance Act vests exclusive jurisdiction in the Board and Tribunal, and that circumventing this scheme through a civil action constitutes an abuse of process.

The court also held that bad faith is not independently actionable and that the pleadings failed to disclose a reasonable cause of action for misfeasance in public office.

The defendant was charged with failure to report a material change in connection with entitlement to benefits within 10 days of the change, contrary to s. 149(2) of the Workplace Safety & Insurance Act, 1997.

Following an initial acquittal and a successful appeal by the prosecutor, a new trial was ordered.

Prior to the re-trial, the defendant's agent raised the issue of fitness to stand trial, arguing the defendant was unable to conduct his defence due to memory loss regarding the relevant events.

The court ordered a forensic psychiatric assessment.

The forensic psychiatrist concluded that the defendant was fit to stand trial, finding that the defendant's claims of memory loss were exaggerated and that he could communicate with counsel.

The court found the defendant fit and remitted the matter to Provincial Offence trial court for trial.

The applicant sought declarations that operational policies adopted under the Workplace Safety and Insurance Act were unconstitutional and contrary to s. 8 of the Canadian Charter of Rights and Freedoms.

The issue before the court was whether the Superior Court had jurisdiction to determine the matter by application or whether it had to proceed as a judicial review before the Divisional Court.

The court held that the impugned policies constituted the exercise of statutory power under the Judicial Review Procedure Act.

Because the applicant sought only declarations regarding the legality of those policies and no civil action was pending, the matter properly fell within the jurisdiction of the Divisional Court by way of judicial review.