Court File and Parties
Court File No.: Thunder Bay 101213 Date: 2012-02-29
Ontario Court of Justice
Between: Her Majesty the Queen in Right of Ontario (WSIB)
— And —
Robert Allan Valley
Before: Justice of the Peace R.A. Zuliani
Heard: December 12th & 13th, 2011
Reasons for Judgment Released: February 29, 2012
Counsel:
- Rebecca Rosenberg, for the prosecution
- Serge Ettinger, for the defendant Robert Allan Valley
JUSTICE OF THE PEACE ZULIANI:
Charges
On information 101232, Robert Allan Valley stands charged with the following:
Between 30th day of July 2007 and 9th day of November 2010, at or near the City of Thunder Bay in the North Region and elsewhere in the Province of Ontario, hereafter "the City", did wilfully fail to inform the Workplace Safety and Insurance Board, hereafter "the WSIB", of a material change in circumstances in connection with his entitlement to benefits within 10 days after the change occurred, contrary to section 149(2) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, Chapter 16 as amended, hereafter "the Act"
Further that on or about the 19th day of April, 2010 at the City, did knowingly make a false or misleading statement or representation to the WSIB in connection with his claim for benefits, contrary to section 149(1) of the Act.
Further that on or about the 8th day of September, 2007 at the City, did knowingly make a false or misleading statement or representation to the WSIB in connection with his claim for benefits contrary to section 149(1) of the Act.
Further that on or about the 31st day of August, 2007 at the City, did knowingly make a false or misleading statement or representation to the WSIB in connection with his claim for benefits contrary to section 149(1) of the Act.
Further that on or about the 11th day of July, 2007 at the City, did knowingly make a false statement or representation to the WSIB in connection with his claim for benefits contrary to section 149(1) of the Act.
Evidence Heard at Trial
6Dr. Alan James Hayes testified that he had entered into a verbal agreement in the spring of 2007 to have Mr. Robert Valley clear some land he owned with the understanding that he would perform dental work for Mr. Valley's children in return. He testified that he conducted these negotiations with Donna Valley. He also testified that to make sure that there was a paper trail for his accounting purposes he would issue payment to Mr. Valley for the clearing work and then Mr. Valley would return the money in exchange for the dental work on his children. The understanding was one of a barter arrangement. The four cheques issued by Dr. Hayes were introduced as evidence at exhibit # 4; cheque # 0282, dated 03 of August 2007 in the amount of $1000.00 was issued to Donna Valley, cheque # 0338, dated 09 of September 2007 in the amount of $2000.00 was issued to Donna Valley, cheque # 0425, dated the 15th of October 2007 in the amount of $2500 was issued to A. Valley and cheque # 0384, dated the 24th of September 2007 in the amount of $2000.00 was issued to Al Valley. Court also heard that Dr. Hayes had met with Mr. Valley at the clearing site at which time Mr. Valley helped him construct a 10ft. by 10ft. platform. Mr. Valley's help consisted of screwing the deck boards in place using a power drill. This was done as a favour and no payment was received for this work. Dr. Hayes also testified that the clearing work had been completed as agreed. He testified that he had not been present at the site when the clearing work was being done and that he had never witnessed Mr. Valley operating the bulldozer. Dr. Hayes also testified that he was presented an invoice by Dona Valley specifying charges for the number of hours used by the dozer, cost of fuel and float charges. He disputed the invoice and returned it to Robert Valley and that it was not presented to him again.
7Joy Dagenais, owner of Cozy Corner Towing Company testified that she knows Robert and Donna Valley and that Donna Valley is employed by her and was so employed in 2007. Her husband Mr. Dennis Dagenais (now deceased) had made a deal with Mr. Robert Valley to level a lot they owned on Rosslyn Road. She was not aware of the conditions of the deal but acknowledged that in 2007 work was done levelling the lot at Rosslyn Road and it took about one week to complete. She testified that she was directed by her husband to make a cheque out to Donna Valley in August of 2007. She did so and a photocopy of that cheque is found at exhibit # 4. It is cheque #15900, dated 21 of August 2007 in the amount of $3570.00 issued to Donna Valley endorsed as Dozer @ Rosslyn. She stated that the work had been completed and that she had visited the site periodically after working hours to check on the progress of the job but she had never observed Mr. Valley operating the bulldozer.
8Mellisa Lebell works for her father who is the owner of Brenron Contacting, testified that on July 22, 2007 float service to move a bulldozer from Melbourne Road to Ohmala Road were provided to and paid for by Donna Valley. Exhibit # 6 is an invoice # 344 from Brenron Contacting to Donna Valley for float services of a D5 bulldozer from Melbourne Road to Ohmala Road in the amount of $201.40 marked paid.
9Mark Brown is a tow truck operator employed by Cozy Corners and who was employed as such in 2007. Donna and Robert Valley separated in September of 2007 and Mr. Brown and Donna Valley are presently in a common law relationship. Mr. Brown testified that he was called out to Old Hill Road, which he described as the dentists property, to pull out a stuck dozer. He testified that the dozer was stuck too far away to allow his cables to reach so he did not complete the tow. He saw and spoke to Mr. Valley on this occasion. He also testified that he occasionally visited the Rosslyn site to check on progress and on one occasion was there with Donna Valley to bring water out to Robert as it was very hot. He testified that he saw Mr. Valley operate the Bulldozer for a brief period during this visit. He also testified that he had helped Mr. Robert Valley with the installation of fence posts on Mr. Valley's property. When this work was being done Mr. Valley operated a mini excavator while he lifted and placed the fence posts.
10Keneth Bates, a retired Thunder Bay Police Officer gave testimony about an incident that he investigated in September 2008. He stated that he had responded to a complaint on Calvert Road, the residence of Carolyn Jones. She reported that she had difficulties with Robert Valley and his daughter Kaitlyn who had been boarding horses with her. There had been a falling out and she wanted a trespass notice issued to them. Mr. Valley had been storing his bulldozer and dump truck on the property and this was observed by Keneth Bates. The result of the investigation was that Robert and Kaitlyn Valley were issued trespass notices with a provision Mr. Valley could attend in company of the police to retrieve his bulldozer, truck and other personal property. The general occurrence report at exhibit #7 supports this testimony.
11Donna Valley is employed as the office manager at Cozy Corner and has been since March of 2007. She testified that she had been married to Robert Valley from 1987 to 2009 and that Robert Valley had been working for her father as a float driver at Koski Trucking in 2002 when Robert Valley suffered a work place accident that required him to undergo two surgeries, one in 2003 and another in 2005. She was the primary care giver after the surgeries. She testified that Robert Valley was in extreme pain even after the second surgery and that physical and emotional complications as a result of the accident put a strain on their relationship. It eventually deteriorated to the point that they separated in 2007 and divorced in 2009. She also admitted that there has been a build up of animosity between them since the divorce. She testified that Robert had made the deal with Dr. Hayes for the clearing of his land and that all she did was put the cheques in the bank account. This was an account held at CIBC in both of their names and that she had not accessed the account since the separation so all transactions since then are his. She also said she knew of the arrangements that the money from Dr. Hayes was to be returned to him in exchange for dental work to be done for their children.
12Luke Farmer runs a horse boarding stable at 76 Mud Lake Road. He testified that he had an arrangement with Robert Valley where he would board Kaitlyn Valley's three horses and in return Katlyn would work at the farm to pay off the charges. In addition Robert Valley was able to store his bulldozer and truck on the property at no charge. Mr. Farmer testified that things did not work out well with Kaitlyn in that her work was inconsistent and she was unreliable. He did state that when she did work she worked well. This arrangement ended with part of the charges being forgiven for work in kind by Kaitlyn and the balance paid by Robert Valley. Mr. Farmer also testified that Robert Valley agreed to push some trails through at the back of the property and that he observed Mr Valley move the bulldozer to the tree line to make the trails. He did not watch the entire operation and lost sight of Mr. Valley when he went behind the tree line. He estimated the job took a couple of hours but could not quantify it exactly. He testified that this job was done as a favour and no compensation was exchanged.
13Pat Jones, a case manager for WSIB, testified that she had carriage of Mr. Robert Valley's case from 28 March 2009 to 27 May 2011. Her duties include becoming familiar with the cases in her charge by reviewing information from a variety of sources such as worker reports, medical files and discussions with the client. Based on the review of all available information the case manager is tasked with making decisions with respect to entitlements, level of impairment and work reintegration. She testified that Robert Valley had been receiving WSIB benefits due to a work place injury since April 2002 which was initiated as a result of the filing of a Form 7 which is at exhibit # 10. Pat Jones also testified that she was managing Mr. Valley's claim post lock-in. Benefits are locked in at 72 months and generally at that time become dormant. She testified that after receiving a second anonymous call with respect to Mr. Valley's claim she felt she had sufficient information to move forward on the file. In her testimony she stated that she had never discussed "material change" with Mr. Valley but stated that workers receiving indexing were sent a yearly reminder which outlined the percentage of the index and the requirement to report any material change. She also testified that the WSIB came to find out that it was Donna Valley who had been the anonymous caller.
14Peter Tillberg a manager for A to Z rentals testified that between 23 May 2006 and 29 October 2007 there were a number of rentals made out to Robert Valley for equipment such as scaffolding, sky jack, and mini excavator supported by the invoices tendered as exhibit #17. He could not confirm for what purpose the equipment was rented nor who used it.
15Trish Carangi, who is responsible for work transition at the WSIB testified that in 2004 she was the claims adjudicator and was dealing with Robert Valley with whom she had regular and ongoing contact by phone. She testified that during these discussions, issues with respect to Robert Valley's fitness to return to work included, what activities to avoid, limitations, and type of work that could be performed. She also noted that a discussion with respect to depression was becoming an issue as the pain was taking its toll and tension was building in the family. An assessment by a psychologist was arranged and the WSIB provided counselling support to deal with this issue. Ms. Carangi could not re-call ever having discussed with Mr. Valley the term "material change". She also testified that she had received the worker progress reports from July and April of 2007 signed by Mr. Valley that reported that there was no improvement in his condition, he was not yet fit for work and that he had not worked for any employer or been self-employed between the first day off and the present. In addition she had received a completed earnings questionnaire dated September 8, 2007 on which Mr. Valley had indicated that he had not worked at any time since WSIB had last reviewed the wage loss benefit and that he had applied for and was receiving CPP.
16Susan Bourdages is a case manager for WSIB and was covering for a vacationing colleague on the 30 of April 2008 when she dealt with a call from Mr. Valley. She testified that she had received a call from Mr. Valley who was reporting that his leg had given out and he had suffered a fall hurting his right wrist in the process. He had visited his family doctor on the 23 April 2008 who prescribed a brace for his wrist and now Mr. Valley was calling requesting payment for the brace. When asked why there was a delay of a week from the incident to the report Mr. Valley explained he originally thought it was not serious as he was on a great deal of pain medication and thought it would get better. She then testified that she questioned Mr. Valley with respect to whether his medication would impair his ability to drive. Mr Valley confirmed that it would not and when further questioned as to his ability to work as a driving instructor as he was qualified to do so he stated that he was only able to drive short distances to appointments. In cross-examination Susan Bourdages stated that in her dealings with Mr. Valley she had never had any discussions with him about what the term "material change" meant.
17Ann Thompson a registered nurse employed as Nurse Consultant for the WSIB testified that she was, what was then known as Nurse Case Manager, for Mr. Valley's case. She could not recall the exact date but remembers it being sometime around late 2002 or early 2003 but at any rate close to the time of Mr. Valley's accident. She indicated that she had many telephone conversations with Mr. Valley with respect to post operative care. These discussions were carried out with respect to limitations resulting from the back surgery and include but not limited to the types of activities Mr. Valley should or could perform, when or when not to wear braces and the types of physical activity to be avoided to help in recovery.
18Kaitlyn Valley, daughter of Robert and Donna Valley, stated that up until May of 2011 she had been living with her dad Robert Valley. She testified that she had owned numerous horses that she had boarded at Carolyn Jones farm where she would work off the boarding fees but that there had been a falling out and she was no longer welcome at the Jones' farm. She also stated that she moved the boarding of the horses to Luke Farmers' property and had agreed to work off fees in exchange for boarding her horses. This arrangement did not work out. Part of the fee was forgiven for work in kind and the balance owing of the remaining fees were paid for by her father. She also testified that while living with her father that she observed him in constant pain and all he did was limp around the house and sleep. She stated that he cried a lot and was angry and snapped easily. She could not recall specifically any comments her father had made regarding her mother but admitted that comments were made that could be expected by any adults that were dealing with marital breakup.
19John St. Amand, a heavy equipment operator for the City of Thunder Bay, friend and neighbour of Robert Valley who also knows Donna Valley testified that he operates Mr. Valley's bulldozer for him in the expectation that he is allowed to use the bulldozer for his own use at no charge. He testified that he had operated the bulldozer at both Dr. Hayes' property and the Dagenais' lot on Rosslyn Road. The job at Dr. Hays' property took about one week, working after the work day and on weekends as did the job on Rosslyn Road. He did not receive payment for this work but in exchange he was to be allowed the use of Mr. Valley's bulldozer. He testified that he knew Mark Brown and that he could not recall Mr. Brown ever bringing water to either work site. He also testified that he had received a panic call from Mr. Valley the night his house was burning and that he had gone over in response and helped Mr. Valley pull his pet dogs to safety. He indicated that he knew the fire had been investigated by both the OPP and Fire Marshal and he understood the cause of the fire was found to be an accidental dryer fire.
20Mr. Robert Valley testified that while working for Koski Trucking he suffered a workplace injury in 2002. The injury was the result of a fall of about 16 feet from the top of an excavator which was being secured to a float bed. The injury resulted in severe back pain that required two successive surgeries. The first one in 2003 performed by Dr. Hoffman that proved unsuccessful. After the first surgery there no improvement noted in Mr. Valley's mobility nor was there relief of his lower back pain. A second surgery requiring the use of instrumentation (pins and screws) to aid in the bone fusion was performed by Dr. Johnson in 2005. Mr. Valley testified that this second surgery did not relieve the pain in fact the post operative pain had intensified. A possible explanation for this is described in Dr. Hoffmans letter of February 17, 2005 to Dr. Johnson at exhibit #1 where he indicates he is ordering a CAT scan to determine if one of the surgical screws from the second surgery may be impinging on a nerve ending. Mr. Valley testified that he was prescribed ever increasing doses of pain killers and that there had been no improvement to his condition since 2004. In fact the pain levels were increasing and his mobility was on the decline. The series of letters contained in Mr. Valley's medical file at exhibit # 1 supports this statement. Mr. Valley also testified that he had entered into a verbal barter agreement with Dr. Hayes to have land clearing done in return for dental work for his children. He stated that Donna, his then wife, administered the family finances. He was aware that there was an agreement that Dr. Hayes would pay for the clearing of his property with the understanding that the money would be then returned to him as payment for dental work on the Valley Children. He testified that the signature on the deposit slip dated Oct. 15 2007 at exhibit # 9 was not his. He also testified that at the time of the break up the relationship between he and Donna was civil but has deteriorated over time. With respect to the arrangements made with Mr. Dennis Dagenais for the clearing of the property at Rosslyn Road Robert Valley testified that he knew Dennis quite well. He agreed to clear the Roslyn Road lot with the understanding that at some point in the future Dennis would provide a repossessed vehicle, of which he had access because of his Cozy Corner operation, at no charge to Mr. Valley's Children in exchange for the work. Mr. Dagenais also agreed to pay for the floating of the bulldozer to his property and provide fuel for the dozer. Mr. Valley testified that John St. Amand operated the bulldozer at both Dr. Hayes' property and the Rosslyn Road site on the understanding that Mr. Valley would allow him to use the bulldozer for his own purposes in exchange for operating the dozer. Robert Valley also stated that as the result of his daughter requiring a bigger coral for her horses the family undertook to the expand the fence around the coral. He testified that they used a mini excavator for that job and that Mark Brown was helping by putting in fence posts once the hole was prepared. He testified that they had the mini excavator for two days during which time he had operated the machine for about 40 minutes spread over that two day period and that his son operated it for most of the remaining time. When operating for even a 10 minute period he had to go into the house to lie down. In his testimony Mr. Valley also stated that he had walked his bulldozer though at Mr. Farmers' property to make a few trails for him. This work took about one hour and he was very sore at the completion of the task. There was no payment for the service nor was there any contract verbal or written. With respect to his phone call to Pat Jones he stated he never used the term "material change" and that this term was never defined for him by anyone at WSIB. When discussing the call with respect to the April 19, 2010 report when questioned if he had worked since lock in, he had responded "no". Mr Valley reiterated that in all progress reports that he reported no improvement or no change and that he filled out the forms honestly. With respect to the fire at Upton Road Mr. Valley stated it was investigated and found to be accidental. He testified that he was not aware of the payment from Cozy Corner Service of $3570.00 by cheque # 15900 dated 21 August 2007 made out to Donna Valley until it was presented as part of the disclosure package.
Issues Before the Court
21The first issue before the court is to determine whether Mr. Robert Valley between the 30th of July 2007 and 9th of November 2010 did wilfully fail to inform the WSIB within the required 10 days of a material change in circumstances in connection with his entitlement to benefits?
22Second is to determine if on the 19th of April 2010, 8th of September 2007, 31st of August 2007 and 11th of July 2007 he did knowingly make false or misleading statements to the WSIB.
23Third is if a "policy" in a manual meant to inform the WSIB staff is not necessarily uniformly understood by the WSIB staff be considered "law"? Is it reasonable to hold a claimant to an unknown and uncertain standard?
24Fourth is to determine if the onus is on the claimant to understand and respond to the WSIB policy or is it incumbent on the WSIB staff to ensure the claimant understands the policies and regulations to which they must conform?
25Fifth is that given the disparity in reading and comprehension skills across society is it appropriate for the WSIB to rely on cryptic written advisories located at the bottom of a form that, in itself, might be difficult for a claimant to comprehend?
Position of the Respondents
26The Crown takes the position on count one that Mr. Valley did do work constituting a material change in circumstances during the period and failed to report it within the ten days as required by section 149(2) of the Act. There is an expectation that any work, which they define as the ordinary meaning of the word whether paid or voluntary is expected to be reported. They contend that the work done at Dr. Hayes property, Mr. Dagenais' Rosslyn lot, Mr Farmers' trails, and fencing on his own property all were required to be reported. As it was not reported the Crown believes Mr. Valley did wilfully fail to inform the WSIB as required. The WSIB policy manual presumes that any person who fails to report a material change in circumstances has done so intentionally. It is therefore incumbent on the worker to know and comply with the requirements. On the bottom of form 41 which is filled out by the injured worker there is a printed reminder that states "if you experience changes to your income, health status, job or any other change that might affect your entitlement to service or benefits we call this a material change. It is important that you let us know of the change within 10 days." With respect to counts 2 through 5 the Crown takes the position that as Mr. Valley answered "no" to the question of whether he had worked for and employer or been self employed since the first day off, or whether he was working or had worked at any time since the last review of his wage loss benefit, and that he had reported that there was no improvement to the condition of his injury and that he was not fit to return to work that he had knowingly made false or misleading statements to the WSIB. The crown is seeking conviction on all five counts.
27The Defence takes the position that Mr. Valley was never informed by any member of the WSIB as to the definition of "material change" that he never used the term in conversation with any member of the WSIB. Work as defined by WSIB was never explained to him. He understood work to mean being employed and earning a salary and to support this understanding points to the WSIB forms that if you answer "yes" to "have you been working?" requires information such as dates worked, employers name, wages, copy of T4 slips and CRA deduction print outs. With respect to his medical progress he is of the belief based on his condition and on-going medical analysis that there is no improvement in his condition and he continues to report as such. He does not believe he has willingly or knowingly made false or misleading statements to the WSIB and has conformed to all requirements as he understands them. The defence is seeking acquittal on all five counts
Findings
28The charges against the Defendant were brought under the Workplace Safety and Insurance Act. Specifically the Defendant was charged under section 149(1)(make a false statement) and 149(2) (fail to inform of a material change in circumstances)
29Those statutory provisions read as follows:
a) 149(1) A person who knowingly makes a false or misleading statement or representation to the Board in connection with any person's claim for benefits under the insurance plan is guilty of an offence.
b) 149(2) A person who wilfully fails to inform the Board of a material change in circumstances in connection with his or her entitlement to benefits within 10 days after the change occurs is guilty of an offence.
30Given the statutory wording"knowingly" and "wilfully" there is no doubt that each of the statutory provisions created a full mens rea offence, requiring the Crown to prove a positive state of mind, i.e. either knowledge or intention, beyond a reasonable doubt. In other words, the prosecution is required to prove wrongful intention in addition to the prohibited conduct.
31The WSIB police guidelines define "material change in circumstances" as any change that affects a person's entitlement to benefits and service under the Act. Descriptions of the types of changes a person must report to the WSIB are listed under the headings of Health Care Status and Earning/income with examples. Under Health Care Status the examples listed are:
- Improvement or a deterioration of the work-related condition.
- a need for more or different treatment, or surgery.
- stopping treatment.
- a need for an assistive or prosthetic device, or to make changes to an existing device
Under Earnings/income the examples listed are:
- getting a wage increase or decrease.
- receiving CPP/QPP disability benefits because of the work-related injury (entirely or in part).
- increases or decreases in CPP/QPP disability benefits.
These guidelines are intended for internal use and are not provided to the public other than by on line access.
32In Regina v. Kester (1982), 38 O.R. (2d) 294 which is an Ontario Court of appeal decision at page 5 the Court stated that:
"In proving the mens rea ...., the prosecution is not limited to direct evidence of the facts to be proved, for proof may be made by inference as well......., it is open to the trier of fact, employing ordinary logic and common sense, to draw the inference from the facts proved that the accused knew that the representations made were untrue or unconscionable."
33In assessing the evidence before the court, the court is left to wonder if these charges are more form than substance. The WSIB as stated in its internal policy manual directs that if a person fails to inform the WSIB as required the person is presumed to have done so intentionally. The court is perplexed that there is no evidence of a communication strategy in place to ensure a common understanding of terms and conditions (professional jargon) is understood by the general public. Rather the position is taken by the WSIB it is the public's responsibility to become familiar with the meaning of the jargaon. They point to the fact that although they do not provide the internal policy manual to the general public it is available on line. WSIB employees who testified were not able to articulate a common understanding of what constituted a material change as it relates to benefits. It is not reasonable to expect all members of the general public to have access to the manual on line or even if accessible that there would be a common understanding of the jargon used.
34There was a palatable feeling of animosity displayed towards Mr. Valley by both Donna Valley and Mark Brown. This was the result of a domestic breakdown between Mr. & Mrs. Valley and the subsequent common law relationship that developed between Donna Valley and Mark Brown. This antagonism was evident throughout the trial by the demeanour of both these witnesses therefore little weight is given to their testimony.
35The court notes that section 23(3) of the Act provides that the obligation to notify the Board of material changes only applies "in connection with the entitlement" There is no evidence before the court that the defendant received any wage or remuneration for work performed by himself. The evidence supports that the work done at Dr. Hays's property, and Mr. Dagenais Rosslyn Road lot was entered into as a barter arrangement. Mr. St. Amand, was unshaken and precise when he testified that he was the operator of the bulldozer owned by Mr. Valley on each of these projects and did the work in exchange for being able to use the bulldozer for his ownpurposes. In the case of Mr. Farmer the pushing through of the trails was a project undertaken as a favour by Mr. Valley. The fence post work done with the mini excavator was a family project. In both of these cases Mr. Valley has admitted to operating both the bulldozer and mini excavator for varying short durations after which he experience a great deal of pain. In neither case was there a payment made for services.
36Pat Jones testified that on Nov 5, 2009 Mr. Valley called to report that he was going to have surgery for the non-comp left shoulder and wanted to report this material change. This is supported by memo #156 found at exhibit #12. She also testified that on 19 April 2010 Mr. Valley called with respect to having suffered a as a result of his legs stopping. He had sought medical attention and x-rays confirmed there was no fractures or punctures to his left lung. He was prescribed pain killers and sent home. During this call Mr. Valley was asked if he had worked since lock-in and he had indicated that he had not. This is supported by memo #162 found at exhibit #16.
37Mr. Valley has testified that he understood work to mean being employed or having a job for which he is paid. He points to the form which gives examples of what is required if you answer yes to the question have you worked which require supporting documents such as T4's and Revenue Canada reports.
38The prosecution is obligated to prove the case beyond a reasonable doubt. The court is obligated to follow the three step process as out lined in R.v.WD. First, if the court believes the evidence of the defendant then the court must acquit. Second, if the court does not believe the evidence of the defendant but is left in reasonable doubt by it, the court must acquit. Third, even if not left in doubt by the defendant's evidence, on the basis of the evidence the court does accept, is the court satisfied of the defendant's guilt beyond a reasonable doubt?
Verdict
39Count One – Acquittal
With respect to count one the court notes evidence that shows that the WSIB did not, except for the notice at the bottom of form 41, have a process in place to explain to claimants what was meant by material change. Not one of the WSIB employees who gave testimony was able to articulate a common understanding of what a material change was despite an internal policy manual that provided examples of what was to be considered. There is no evidence that such an explanation was provided to Mr. Valley. There is reasonable doubt as to whether Mr. Valley wilfully failed to inform the WSIB of a material change therefore there will be an acquittal on count one.
40Count Two – Acquittal
With respect to count two that alleges on April 19th Mr. Valley knowingly made a false or misleading statement or representation to the WSIB that is the result of a phone call with WSIB case manager Pat Jones and documented in memo 162 found at exhibit # 16 where when Mr. Valley was asked if he had worked since lock in he had answered no. The only evidence before the court with respect to work being done as of this date is the activity at Luke Farmers property. This activity was conducted without remuneration and according to Mr. Valley's testimony for a period of 20 minutes at least and according to Mr. Farmers testimony two hours at most. Given Mr. Valley's understanding of what constituted work that had to be reported it is not unreasonable to understand why he would have said "no". The WSIB form that outlines the type of documentation required if you answer in the affirmative would reasonably lead one to understand work as it relates to the WSIB requires supporting documentation such as wage slips, self-employed earnings or T4 slips. There is reasonable doubt as to whether Mr. Valley knowingly made a false or misleading statement or representation to WSIB therefore there will be an acquittal on count two.
41Count Three – Acquittal
With respect to count three that alleges Mr. Valley when filing an earnings questionnaire dated September 8th 2007, found at exhibit # 15 where Mr. Valley has ticked of "no" to the question is the worker working or has worked at any time since the last review of wage loss benefit thereby knowingly mislead the WSIB. The evidence before the court is that during this period Mr. Valley's bulldozer operated by Mr. St. Amand was provide for a rental charge in a barter arrangement for clearing work at both the property of Dr. Hayes and a lot on Roslyn Road belonging to Cozy Corner. In a 2008 Ontario Workplace Safety and Insurance Appeals tribunal decision "M. Crystal v. Chair" when referring to a workers obligation to report a material change in circumstances opines that an injured worker who receives a return on investment is not considered for the purposes of insurable earnings. This court is satisfied that leasing or renting equipment does not constitute work for the purpose of benefit entitlement. The crown has failed to meet it onus and there is a reasonable doubt as to whether Mr. Valley knowingly mislead the WSIB when he completed this earning questionnaire therefore there will be an acquittal on count three.
42Count Four – Acquittal
With respect to count four that alleges Mr. Valley when filing a workers progress report dated 31st of August 2007 found at exhibit # 14, where Mr. Valley responds to the question"what is the present condition of your injury ?", he answers "no improvement" that he did knowingly make a false or misleading statement or representation to the WSIB. The preponderance of evidence from Mr. Valley's Medical file found at exhibit #1 shows that there was no improvement in Mr. Valley's condition nor where there any Doctors endorsements that he could go back to work. The Crown has not met it onus and there is reasonable doubt as to whether Mr. Valley knowingly made a false or misleading statement to the WSIB therefore there will be an acquittal on count four.
43Count Five – Acquittal
With respect to count five that alleges Mr. Valley when filling another workers progress report dated July 11th 2007 found at exhibit # 13, where Mr. Valley in responding to the question "did your doctor say you could go back to work ?" and he ticked of "no" and to the question "Date able to return to work?", he answers "never", has made false or misleading representations to the WSIB. The evidence at trial supports that there has been no improvement in Mr. Valley's medical prognosis and that his mobility had not changed at that time. A reasonable doubt has been raised as to whether Mr. Valley has made a false or misleading representation to the WSIB, the Crown has not met its onus therefore there will be an acquittal on count five.
Released: February 29, 2012
Signed: "Justice of the Peace R.A. Zuliani"