Ontario Court of Justice
CITATION: Ontario (Workplace Safety and Insurance Board) v. Ashamas Ashaq, 2026 ONCJ 108
DATE: March 2, 2026
IN THE MATTER OF
the Workplace Safety and Insurance Act, 1997,
Between
Ontario
(Workplace Safety and Insurance Board)
prosecutor
and
SAAD SAMEER JIRJEES ALSHAMAS ASHAQ
defendant
Ontario Court of Justice
Brampton, Ontario
Quon J.P.
Reasons for Judgment
Charge: “knowingly making a false or misleading statement or representation to the Board in connection to a claim for benefits”, contrary to s. 149(1) of the Workplace Safety and Insurance Act, 1997.
Trial held: October 30, October 31, and November 1, 2025.
Judgment released: March 2, 2026.
Counsel:
A. Brar, counsel for the Workplace Safety and Insurance Board
L. Myers, legal representative for the defendant
Cases Considered or Referred To:
Canada (Procureur général) c. Atlantic Sugar Refineries Co. Ltd., [1978] J.Q. no. 114 (Que. C.A.).
Curtis v. Ontario (Workplace Safety and Insurance Board), [2018] O.J. No. 2483, 2018 ONCA 441 (Ont. C.A.), per Sharpe, Pardu and Fairburn JJ.A.
Georges Emard Courville v. Minister of National Revenue, 64 DTC 349 (Tax Appeal Board).
D.P.P. v. Beard, [1920] A.C. 479 (H.L.).
Decision No. 1115/22R, [2024] O.W.S.I.A.T.D. No. 588, 2024 ONWSIAT 624 (Ontario Workplace Safety and Insurance Appeals Tribunal), per McCutcheon, Chair.
Decision No. 3526/18R, [2020] O.W.S.I.A.T.D. No. 628 (Ontario Workplace Safety and Insurance Appeals Tribunal), per Allen, Vice-Chair.
Ferraro v. Lee (1974), 1974 CanLII 440 (ON CA), 2 O.R. (2d) 417 (Ont. C.A.), per Gale, C.J.O., Brooke and Arnup, JJ.A.
Fiordimondo v. Ontario (Workplace Safety and Insurance Board), [2013] O.H.R.T.D. No. 2296 (Ontario Human Rights Tribunal), Pickel, J., Vice-Chair
Ontario (Workplace Safety and Insurance Board) v. Koomson, [2011] O.J. No. 5944 (Ont. C.J.), per Quon J.P.
R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394 (S.C.C.).
R. v. Aiello, 1978 CanLII 2374 (ON CA), [1978] O.J. No. 373, 38 C.C.C. (2d) 485 (Ont. Supreme Ct. – Ct. of App.), per Martin, MacKinnon and Lacourciere JJ.A.
R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, S.C.J. No. 13 (S.C.C.).
R. v. Chen (2025), 176 O.R. (3d) 561, 2025 ONCA 168 (Ont. C.A.), per Pepall, Harvison Young and Sossin JJ.A.
R. v. Container Materials Ltd., 1940 CanLII 369 (ON HCJ), [1940] O.J. No. 232, 4 D.L.R. 293, 74 C.C.C. 113 (Ont. Sup. Ct. – H.C.J.), Hope, J.
R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, S.C.J. No. 53 (S.C.C.).
R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, S.C.J. No. 77 (S.C.C.).
R. v. Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941, S.C.J. No. 105 (S.C.C.).
R. v. Farmer, [2014] O.J. No. 5736, 2014 ONCA 823 (Ont. C.A.), per Sharpe, Hourigan and Pardu JJ.A.
R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] S.C.J. No. 63, 2 S.C.R. 973 (S.C.C.).
R. v. Inco (2006), 2006 CanLII 14962 (ON SC), 80 O.R. (3d) 594 (Ont. S.C.).
R. v. J.F., 2008 SCC 60, [2008] 3 SCR 215, S.C.J. No. 62 (S.C.C.).
R. v. Lavallee (1990), 1990 CanLII 95 (SCC), 55 C.C.C. (3d) 97 (S.C.C.).
R. v. Maple Lodge Farms, [2013] O.J. No. 4582, 2013 ONCJ 535 (Ont. C.J.), per Kastner J.
R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, S.C.J. No. 119 (S.C.C.).
R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, S.C.J. No. 36 (S.C.C.).
R. v. O'Connor, 1995 CanLII 255 (ON CA), [1995] O.J. No. 2131, 25 O.R. (3d) 19 (Ont. C.A.), per Goodman, Finlayson and Weiler JJ.A.
R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, S.C.J. No. 135 (S.C.C.).
R. v. Pham, 2004 CanLII 33346 (ON CA), [2004] O.J. No. 4162, 124 C.R.R. (2d) 374 (Ont. C.A.), Weiler, Rosenberg JJ.A. and Pardu J. (ad hoc), at para. 6.
R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, S.C.J. No. 81 (S.C.C.).
R. v. Saini, [2023] O.J. No. 2813, 2023 ONCA 445 (Ont. C.A.), per Trotter, Thorburn and Coroza JJ.A.
R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 (S.C.C.).
R. v. Sekhon, 2014 SCC 15 (S.C.C.).
R. v. Stirling, [2008] 1 S.C.R. 272, 2008 SCC 10 (S.C.C.).
R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, S.C.J. No. 27 (S.C.C.).
R. v. Sutherland, [2010] O.J. No. 1797, 2010 ONSC 2240 (Ont. S.C.), per Koke J.; affirmed, [2011] O.J. No. 1295, 2011 ONCA 239 (Ont. C.A.), per Doherty, LaForme and Epstein JJ.A..
R. v. L.C.T., [2012] O.J. No. 778, 2012 ONCA 116, 288 O.A.C. 133, (Ont. C.A.), per O'Connor A.C.J.O., Laskin and Cronk JJ.A.
R. v. Tomlinson, 2014 ONCA 158, [2014] O.J. No 930 (Ont. C.A.), per Watt, Laskin, Macpherson J.J.A.
R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, S.C.J. No 42 (S.C.C.).
R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, S.C.J. No. 16 (S.C.C.).
R. v. Tyrell, (2014), 123 O.R. (3d) 109, 2014 ONCA 617 (Ont. C.A.), per Doherty, Rouleau and Epstein JJ.A.
R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, [1991] S.C.J. No. 26 (S.C.C.).
R. v. W.D.S., 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, S.C.J. No 91 (S.C.C.).
R. v. Williams, [2008] O.J. No. 2054, 2008 ONCA 413, (Ont. C.A.), per O'Connor A.C.J.O., Blair and Lang JJ.A.
Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513 (S.C.C.).
Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, S.C.J. No. 2 (S.C.C.).
Skorski v. St. Catharines Canadian Polish Society, [1999] O.J. No. 434 (O.C.J. (Gen. Div.)), per Quinn J.
White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (S.C.C.).
Statutes, Regulations and Rules Cited:
Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.
Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(g).
Canadian Multiculturalism Act, R.S.C., 1985, c. 24 (4th Supp.).
Canadian Charter of Rights and Freedoms, Part 2 of the Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, R.S.C. 1985, App. II, ss. 14 and 27.
Human Rights Code, R.S.O. 1990, c. H.19.
International Covenant on Civil and Political Rights, art. 14(3)(f).
Evidence Act, R.S.O. 1990, c. E.23, ss. 35 and 52.
French Language Services Act, R.S.O. 1990, c. F.32, ss. 1(b) and 5(1).
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 10(1)(a).
Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.)), s. 15(1).
Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 35, and 81.
Rules of Civil Procedure (Courts of Justice Act, R.S.O. 1990, c. C.43), R.R.O. 1990, Reg. 194, rules 34.09, 53.01(5) and (6).
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, ss. 1, 149, 149(1), 149(2), 157.1(1), 158(1), and 178.
Authorities Considered or Referred To:
Anand, R., “Lifeline: Language Access As A Human Rights Issue” (article presented at 2008 Conference for The Society of Ontario Adjudicators and Regulators), online: Society of Ontario Adjudicators and Regulators website <https://soar.on.ca/node/96 or Anand Lifeline Language access as a human rights issue | The Society of Ontario Adjudicators and Regulators>.
Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing, p. 602 for “false representation”; pp. 602-603 for “false statement”, p. 1000 for “misleading”, and p. 1001 for “misrepresentation”.
Cambridge Dictionary, online website dictionary.cambridge.org <https://dictionary.cambridge.org/dictionary/english/misleading>, “misleading”.
Consent to Treatment Policy of March 2025, online: College of Physicians and Surgeons of Ontario website <https://www.cpso.on.ca/physicians/policies-guidance/policies/consent-to-treatment>.
Consent-to-Treatment Advice to the Profession (March 2020), online: College of Physicians and Surgeons of Ontario website <https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Consent-to-Treatment/Advice-to-the-Profession-Consent-to-Treatment>.
Advice to the Profession: Medical Records Documentation (March 2020), online: College of Physicians and Surgeons of Ontario website <https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Medical-Records-Documentation>.
“Get a court interpreter” information page, online: ontario.ca website <https://www.ontario.ca/page/get-court-interpreter>.
LexisNexis Legal Glossary, online: LexisNexis.co.uk website <https://www.lexisnexis.co.uk/legal/glossary/fraudulent-misrepresentation#:~:text=A%20knowingly%20false%20assertion%20intended,knows%20the%20statement%20is%20false>, “fraudulent misrepresentation”.
Medical Records Documentation Advice to the Profession (March 2020): from the online College of Physicians and Surgeons of Ontario website <https://www.cpso.on.ca/physicians/policies-guidance/policies/medical-records-documentation/advice-to-the-profession-medical-records-documentation>.
Merriam-Webster.com Legal Dictionary, online edition, online: merriam-webster.com website <https:// https://www.merriam-webster.com/legal>, “false statement”, “false representation”, and “misrepresentation”.
Roach, K. Criminal Law, 3rd ed. (2004) (Toronto, Canada: Irwin Law Inc., 2004).
Exhibits entered:
Exhibit "1" - Agreed Statement Of Facts with 3 attached Tabs consisting of: (1) Form 8 (Health Professional’s Report dated January 15, 2024 (2 pages); (2) Form 6 (Worker’s Report Of Injury Or Illness) undated (8 pages); (3) WSIB Case Manager Mayra’s letter entitled, “Review od Loss of Earnings Entitlement”, dated June 18, 2024, sent to Saad Alshamas Ashaq (WSIN claim #32643828), outlining reason for worker Saad Alshamas Ashaq not being entitled to receive loss-of-earnings benefit beginning on January 18, 2024, because he had misrepresented his level of function as the WSIB had confirmed that Saad Alshamas Ashaq had been able to drive, lift, and carry tools and equipment. The letter also states that Saad Alshamas Ashaq’s conversations with the WSIB Case Manager on February 5, 2024, February 23, 2024, March 7, 2024, March 18, 2024, and April 15, 2024, that Saad Alshamas Ashaq had indicated that he had seen minimal improvements, had experienced numbness in his fingers, had found it difficult to complete daily activities of daily living at home, such as vacuuming, and had also reported that he would stay home all day and rest, and that he had also reported having difficulty with lifting and holding a telephone for more than 30 seconds, and so did not do any lifting at home. In addition, the letter also states that there had been information that indicates that Saad Alshamas Ashaq no longer had any ongoing work-related impairment and that records show that Saad Alshamas Ashaq is potentially completing work activities for another company and that records show that on January 18, 2024, that Saad Alshamas Ashaq had been carrying equipment/tools into a building and seen driving on multiple occasions. The WSIB Case Manager also writes that because Saad Alshamas Ashaq had the functional abilities permitting him to return to work and that because he had been potentially working elsewhere, WSIB Case Manager Mayra finds that Saad Alshamas Ashaq had misrepresented his level of impairment, and therefore, Saad Alshamas Ashaq was no longer entitled to any loss of earnings benefits as of January 18, 2024, and because Saad Alshamas Ashaq had received Loss of Earnings benefits until May 27, 2024, a benefit-related debt of $12,753.89 from January 18, 2024 to May 27, 2024 needs to be repaid (4 pages) (21 pages in total).
Exhibit "2" - Copy of memorandum #A0011 entitled “ICAP – INITIAL CASE ASSESSMENT AND PLAN” dated February 6, 2024, regarding worker Saad Alshamas Ashaq and WSIN claim #32643828 and authored by WSIB Case Manager Sabiha Kazi after telephone conversation held on February 5, 2024, with benefits claimant Saad Alshamas Ashaq. Memorandum indicates on page 2 that WSIB Case Manager Kazi had explained re-employment obligation to worker Saad Alshamas Ashaq. On page 3, it was initially noted that the date of anticipated return to regular work was on February 10, 2024. On page 6, it is noted that the worker’s language is English, and that no interpreter had been requested and that the worker has difficulty sleeping due to pain. On page 7, it is noted that the claim had been allowed for left arm and left elbow for health care and loss of earnings benefits beginning January 16, 2024. On page 8, it is noted that a Form 8 (Health Professional’s Report) dated January 15, 2024, had diagnosed left elbow/forearm repetitive strain injury, and that the worker had full walking abilities. On page 11, it is noted that as of February 19, 2024, the worker was not improving with treatment and/or symptoms not well controlled and as of February 20, 2024, the worker had possible apprehension and/or avoidance of activity or movement. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (13 pages).
Exhibit "3" - Copy of memorandum #A0012 entitled “RTW SERVICES REFERRAL MEMO” dated February 6, 2024, regarding worker Saad Alshamas Ashaq and WSIN claim #32643828 and authored by WSIB case manager Sabiha Kazi after telephone conversation held on February 6, 2024, with benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828. On page 2 it is indicated that the worker language of service is English and under the heading “Worker Preferred Language other than English or French” there had been no notes. On page 3 it is noted that that the employer rep also advised the Case Manager that they do not think this is a work-related injury. In addition, on page 3 the functional abilities noted for the worker were full abilities for walking, standing, sitting, bending/twisting and able to drive, but that lifting and push/pull was very limited to 0 to 5 lbs. and requires ongoing break after 5 minutes and that the worker had no ability to operate heavy equipment. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (3 pages).
Exhibit "4" - Copy of memorandum #A0016 entitled “RMAP - REVIEW, MONITOR AND ACTION PLAN” dated February 23, 2024, regarding worker Saad Alshamas Ashaq and WSIN claim #32643828 and authored by WSIB case manager Sabiha Kazi after telephone conversation held on February 23, 2024, with benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828. WSIB Case Manager Sabiha Kazi writes that injured worker Saad Alshamas Ashaq has possible apprehension and/or avoidance of activity or movement and as for the worker’s health recovery that the worker is not improving with treatment and/or symptoms not well controlled and that Saad Alshamas Ashaq had reported no changes since their last conversation and no improvements in respect to activities of daily living. In addition, the worker’s pre-injury earnings were $1,122.00 a week and that there was a lack of accommodation and/or modified work was not available. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (14 pages).
Exhibit "5" - Copy of medical report entitled, “Musculoskeletal (MSK) program of care: Initial assessment report”, in respect to Saad Alshamas Ashaq and WSIN claim #32643828, which is an initial assessment by physiotherapist, Venkata Devi S.K. Gajula, dated January 17, 2024. On page 5, the physiotherapist noted that Saad Alshamas Ashaq’s abilities and restrictions for return-to-work planning included full abilities in walking, standing, sitting, stair climbing, ladder climbing, and ability to drive a car and to use public transit, but that Saad Alshamas Ashaq had been unable to do lifting from floor to waist, unable to do lifting from waist to shoulder, and unable to do lifting above shoulder, and that Saad Alshamas Ashaq pushing/pulling was limited to 0 to 5 kg. In addition, the physiotherapist noted that Saad Alshamas Ashaq’s bending/twisting repetitive movement at bilateral upper extremities, specifically arm and forearm frequency was a constant (67 to 100%). The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (7 pages).
Exhibit "6" - Copy of medical report entitled, “FAF (Functional Ability Form for Planning Early and Safe Return to Work)”, authored by family physician, Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic and dated February 1, 2024, in respect to Saad Alshamas Ashaq and WSIB claim #32643828, which indicates that patient was assessed on February 1, 2024 and that the assessment will apply for approximately 14+ days and that the patient is physically unable to return to work at this time and with recommended date of next appointment of February 15, 2024. In addition, on page 2, it is noted that the patient is in a lot of pain in his left elbow and cannot lift, pull anything with his left arm and he has started Physiotherapy and NSAIDs and needs more time to see improvement from these treatments. Also, signature of Saad Alshamas Ashaq appears in middle of first page. Also on page 2, it is indicated that the completed Functional Abilities Form had been provided to the worker by Dr. Mechetiuc. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (2 pages).
Exhibit "7" - Copy of medical report entitled, “FAF (Functional Ability Form for Planning Early and Safe Return to Work)”, authored by family physician, Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic and dated February 6, 2024, in respect to Saad Alshamas Ashaq and WSIB claim #32643828, which indicates that patient was assessed on February 6, 2024 and that the assessment will apply for approximately 14+ days and that the patient is physically unable to return to work at this time and with recommended date of next appointment “as needed”. Also, signature of Saad Alshamas Ashaq appears in middle of first page. On page 2, it is noted that the Patient started now to develop pain in the right elbow, similar to the left elbow, and tenderness on the lateral epicondylitis and that the Patient was sent to do Xray and Ultrasound of his elbow as well and advised to start Physio for this elbow too and continue for the left elbow too. Also on page 2, it is indicated that the completed Functional Abilities Form had been provided to the worker by Dr. Mechetiuc. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (2 pages).
Exhibit "8" - Copy of medical report entitled, “Musculoskeletal (MSK) program of care: mid-point report”, authored by physiotherapist, Alankrita Srivastava, of Ontario Manual Physio Centre located at 105-400 Dundas Street East, Mississauga, dated February 14, 2024, in respect to Saad Alshamas Ashaq and WSIN claim #32643828, which indicates under the heading “Progress to date” that “Patient B/L Elbow & forearm pain is still same as before, wrist and forearm strength is still same. Elbow (post capsule) (L) & (R) lat. Epicondylitis swelling is only minimally improved and “patient is unable to perform his job duties because it’s making his symptoms worst” and that “patient is still not able to do his job-related duties” and that the estimated time frame for abilities and restrictions is “2 weeks+”. On page 3, the physiotherapist noted that Saad Alshamas Ashaq’s abilities and restrictions for return-to-work planning included full abilities in walking, standing, sitting, and ability to drive a car and to use public transit, but that Saad Alshamas Ashaq had been limited in lifting from floor to waist from 0 to 5 kg. limited to do lifting from waist to shoulder from 0 to 5 kg. and limited to do lifting above shoulder from 0 to 5 kg., and that Saad Alshamas Ashaq was not ready to do any pushing/pulling. In addition, the physiotherapist noted that Saad Alshamas Ashaq’s bending/twisting repetitive movement at bilateral wrist/forearm frequency was frequent (34 to 66%). The document had been entered as a business record as business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (4 pages).
Exhibit "9" - Copy of medical report entitled, “FAF (Functional Ability Form for Planning Early and Safe Return to Work)”, authored by family physician, Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic and dated February 15, 2024, in respect to Saad Alshamas Ashaq and WSIB claim #32643828, which indicates that the date that the patient was assessed was not indicated and that the assessment will apply for approximately 14+ days and that the patient is physically unable to return to work at this time and with recommended date of next appointment “as needed”. Also, signature of Saad Alshamas Ashaq appears in middle of first page. In addition, it is noted on page 2 that “Patient Xray and US of this elbow demonstrated epicondylitis” and that he started Physio for treated both his elbows and will use elbow brace too. Also on page 2, it is indicated that the completed Functional Abilities Form had been provided to the worker by Dr. Mechetiuc. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (2 pages).
Exhibit "10" - Copy of medical report entitled, “FAF (Functional Ability Form for Planning Early and Safe Return to Work)”, authored by family physician, Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic and dated February 24, 2024, in respect to Saad Alshamas Ashaq and WSIB claim #32643828, which indicates that the date that the patient was assessed was February 24, 2024 and that the assessment will apply for approximately 8-14 days and that the patient is physically unable to return to work at this time and with recommended date of next appointment “as needed”. In addition, it is noted that “Patient Xray and US of this elbow demonstrated epicondylitis, he started Physio for treated both his elbows and will use elbow brace too, patient’s work is a carpenter and cannot do his job if not healed enough to be able to lift, twist, push with his arms”. Also, signature of Saad Alshamas Ashaq appears in middle of first page. On page 2, it is noted that that Saad Alshamas Ashaq’s abilities and restrictions included full abilities in walking, standing, sitting, stair climbing, ladder climbing, and the ability to drive a car but less than 10 kilometers and the ability to use public transit, but that Saad Alshamas Ashaq had been limited in lifting from floor to waist up to 5 lbs., limited to do lifting from waist to shoulder up to 5 lbs., and that Saad Alshamas Ashaq was limited in pushing/pulling with his left and right arm and restricted in operating motorized equipment such as a forklift. Also on page 2, it is indicated that the completed Functional Abilities Form had been provided to the worker by Dr. Mechetiuc. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (2 pages).
Exhibit "11" - Copy of memorandum #A0020 entitled “Update on AOI, Non-Occupational Change in Circumstances, and Entitlement to PLOE Decision Memo” dated March 7, 2024 and authored by WSIB case manager Sabiha Kazi regarding benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828 and telephone conversation between case manager and Saad Alshamas Ashaq on March 7, 2024, in which Saad Alshamas Ashaq had confirmed there is a non-occupational change in the circumstances from February 29, 2024 to March 11, 2024, and that case manager indicated that there would be no entitlement to loss of earnings benefits from February 29, 2024 to March 11, 2024. In addition, the case manager indicated that Saad Alshamas Ashaq confirmed that he would return to work as per RTW plan on March 11, 2024. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (2 pages).
Exhibit "12" - Copy of memorandum #A0022 entitled “Call from IP re: RTW” dated March 11, 2024 and authored by WSIB Case Manager Sabiha Kazi after telephone conversation held on March 11, 2024 and completed at 3:25 p.m. with benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828, which is indicated that Saad Alshamas Ashaq’s employer informed him by email on Sunday, March 10, 2024, that there had been a change to him returning back to work and for him not to return to work until employer reviews the claim with the case manager and the WSIB. WSIB Case Manager Kazi then has a telephone call on March 11, 2024, with AE rep Safety First, Rochelle Fajertag on March 11, 2024, who advises of a new situation regarding fraud and that the AE rep has video surveillance and that an investigator had followed the worker beginning January 2024 and that the “IP working at this time for another job, lifting large desk, and believes IP completely fraud while on WSIB benefits beginning January 2024” and that “AE rep advised CM employer does not want IP to return to work at this time due to this information”. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (2 pages).
Exhibit "13" - Copy of memorandum #A0034 entitled, “Overpayment”, dated May 23, 2024, and authored by WSIB Case Manager Sabiha Kazi regarding benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828, in which the case manager indicates that as per narrative report uploaded onto file on 19MARCH2024, IP had functional abilities and was able to return to work. Additionally, IP misrepresented their level of function. Noting this new information and the functional abilities observed in the narrative and surveillance video, loss of earnings benefits are not in order as the worker had functional abilities to return to work to pre-injury duties, WSIB Case Manager Kazi concluded that she is unable to allow loss of earnings benefits beginning 18JAN2024. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (1 page).
Exhibit "14" - Copy of medical report entitled, “Elbow (3/4) Musculoskeletal”, authored by Dr. Deep Chatha, of Ontario Diagnostic Centre of 102 - 71 King Street West, Mississauga and dated February 7, 2024, in respect to Saad Alshamas Ashaq and WSIB claim #32643828, in which it is indicated that the right elbow x-ray revealed “There is no acute fracture, joint effusion or olecranon bursitis” and “The joint spaces are well-preserved with no productive or erosive disease” and that “There are no surrounding soft tissue calcifications” and in conclusion, “No bony injury or arthritic changes”. And for the Right Elbow Ultrasound, it is indicated that. “The footplate of the common extensor tendon is thickened and hypoechoic over region measuring 0.6 x 0.4 cm in keeping with epicondylitis” and that “The common flexor tendon footplate is normal” and that “The biceps and triceps tendon insertions are intact” and that “There is no joint effusion or olecranon bursitis” and that the “ulnar nerve is normal in caliber” and it is concluded that it is “Mild lateral epicondylitis”. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (2 pages).
Exhibit "15" - Copy of memorandum #A0018 entitled “RTW MEETING MEMO/PLAN” dated February 29, 2024 and authored by WSIB RTW specialist Melissa Kerswell after meeting with benefits claimant Saad Alshamas Ashaq, employer representative Tania D’Uva, worker representative Thamer Yousif, and WSIB RTW specialist Melissa Kerswell, held on February 28, 2024 in respect to WSIB claim #32643828, in which it is indicated that in conversation with Saad Alshamas Ashaq on February 23, 2024, Saad Alshamas Ashaq had full abilities in walking, standing and sitting and bending/ twisting and that lifting was very limited to 2lbs. but requires ongoing break after 5 minutes and that for push/pull functional ability it was very limited to 2 lbs. but requires ongoing break after 5 minutes and that Saad Alshamas Ashaq had the ability to drive but could not operate heavy equipment. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (6 pages).
Exhibit "16" - Copy of memorandum #A0029 entitled “CC with CM re: next steps” dated April 23, 2024 and authored by WSIB RTW specialist Melissa Kerswell after conversation with case manager held on April 19, 2024 regarding benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828, in which it is indicated that “IE has rescinded modified work offer given the outcome of the surveillance; not likely to bring IP back to work noting the outcome of the surveillance” and “No further RTWS at this time noting the circumstances”. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (1 page).
Exhibit "17" - Copy of video surveillance on USB stick that had been recorded by Integra Investigation Services Ltd. of benefits claimant Saad Alshamas Ashaq contains video surveillance of five separate days: (1) February 15, 2024 from 10:30.01 A.M. to 11:16: 23 A.M.; (2) February 20, 2024 from 2:43:23 P.M. to 9:20:53 P.M.; (3) February 21, 2024 from 7:02:37 A.M. to 7:53:50 A.M.; (4) February 22, 2024 from 8:45:27 A.M. to 3:46:02 P.M.; (5) February 23, 2024 from 8:41:41 A.M. to 11:09:05 A.M.; and (6) Monday, February 26, 2024 from 9:12:20 A.M. to 3:47:15 P.M. The video recordings were entered as an exhibit on consent (approx. one hour and 45 minutes).
Exhibit "18" - Copy of surveillance report by Integra Investigation Services Ltd. dated Friday, March 1, 2024 and authored by President Don Colbourn and addressed to the attention of Tania D’Uva of Downsview Kitchens, 2635 Rena Road, Mississauga in respect to the investigation into Saad Alshamas Ashaq to determine if he is working at Double AA Woodworking Ltd. in which surveillance spot checks were conducted on February 10, 12-13, 15-16, 20-23, and 26, 2024 and the report indicates that Sameer Alshamas Ashaq had been observed attending Double AA Woodworking Ltd. located at 83 Nugget Court, Brampton on February 15, 22, 23 and 26, 2024. In addition, the report indicates that on February 22, 2024, Saad Alshamas Ashaq was observed driving a Double AA Woodworking Ltd. truck from 83 Nugget Court, Brampton to 258B Sunview Street in Waterloo, Ontario, where Saad Alshamas Ashaq met another male and both unloaded cabinets and other materials, including tool bags, from the truck into the building. In addition, Saad Alshamas Ashaq was observed using both arms to lift cabinets and other items of varying weights out of the truck into the building and stepped up and into and down from the truck with no apparent difficulty and that his movements were swift and fluid with no apparent signs of restriction or difficulty. Then on February 26, 2024, Saad Alshamas Ashaq was observed using a key to unlock the front door of Double AA Woodworking Ltd. located at 83 Nugget Court, Brampton and had gone back and forth multiple times between Double AA Woodworking Ltd. and another unit in the same building and had used a key to unlock the second unit and had locked the door behind him each time he entered. Furthermore, Saad Alshamas Ashaq was observed on February 15, 2024, attending Dundas Medical Clinic and then afterwards immediately drove to Double AA Woodworking Ltd. located at 83 Nugget Court, Brampton. In addition, there are two Certificates of Authenticity signed by Anusan Garunamoorthy on March 17, 2024, and by Derek Mellor on March 13, 2024 attached to the report (34 pages)
Exhibit "19" - on a USB stick - a copy of the audio statement recorded and given on September 12, 2024, at 3:01 p.m. at Central Library in Mississauga by benefits claimant Saad Alshamas Ashaq to WSIB Stakeholder Compliance Investigators Paul Cote and Mike Lagozny and interpreted by Arabic interpreter, Nelly Mikheil, in Egyptian dialect lasting approximately one hour and 48 minutes.
Exhibit "20" - transcript of the audio statement lasting approximately one hour and 48 minutes given on September 12, 2024, at 3:01 p.m. at Central Library in Mississauga by benefits claimant Saad Alshamas Ashaq to WSIB Stakeholder Compliance Investigators Paul Cote and Mike Lagozny and interpreted by Arabic interpreter, Nelly Mikheil, in Egyptian dialect (76 pages).
Exhibit "21" - Copy of expert medical report entitled, “Physician medical review”, authored by Dr. Matthew Krievens and dated November 29, 2024, in respect to benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828. Page 1 indicates that the report is based on the medical and claim information provided by the WSIB and that the information and conclusions provided in the report are based on the documentation and video provided by the WSIB and that Dr. Krievens did not directly assess the worker. On pages 8 and 9 of the report under the heading, “Conclusion/Opinion”, Dr. Dr. Krievens indicates that according to the provided medical records, this worker has reported the onset of significant pain affecting the left elbow and forearm, attributed to repetitive lifting, pushing, and pulling tasks required by their work duties and that a partial tear to the left common extensor tendon is documented; however, there have been no diagnostic imaging reports provided to confirm this diagnosis. And, with respect to the surveillance video observation, especially from events timestamped February 22, 2024, the worker is seen driving a van and assisting with unloading cabinetry materials, involving repeated lifting of various boxes and items independently and with assistance and that other instances of independent lifting and carrying were noted with no signs of discomfort or restricted movement and that the actions observed, particularly the lifting and handling of large items indicate physical activity beyond the restricted 0-5 kg lifting range noted in reports from January through to July 2024 and with the absence of visible signs of discomfort or compensatory movements while performing these tasks also raises questions regarding the consistency of reported functional limitations on file. Notably, Dr. Krievens indicates that these movements do not align with the documented restrictions pertaining to repetitive elbow and wrist movements. In addition, Dr. Krievens also notes that program of care reports from February 2024 specify that the worker is unable to perform even modified work, while the surveillance video from around this time demonstrates the worker performing physically demanding and repetitive tasks and overall the surveillance video demonstrates multiple instances of the worker engaging in lifting, carrying, an assisting tasks with both hands, including the independent removal of large boxes and items from a vehicle, without observable signs of discomfort or distress. Dr. Krievens then opines that these observed functional activities are inconsistent with the physical restrictions and limitations documented in the provided medical records (10 pages).
Exhibit "22" - Copy of curriculum vitae of medical expert Dr. Matthew Krievens (4 pages).
Exhibit "23" - Copy of Evidence Act Notice that had been provided by WSIB legal counsel Alison Brar to the defendant, Saad Alshamas Ashaq, on March 14, 2025 (2 pages).
Exhibit "24" - Copy of emails sent on Monday, January 15, 2024, at 3:53 p.m. from benefits claimant Saad Alshamas Ashaq to Employer Representative Tania D’Uva, in which Saad Alshamas Ashaq informs Tania D’Uva of Downsview Woodworking Limited of his recent muscle injury under the subject of “WSIB form” (1 page)
Exhibit "25" - Copy of email sent by Employer Representative Tania D’Uva, to Saad Alshamas Ashaq dated Tuesday, January 16, 2024 at 2:01 PM, in which Tania D’Uva asks Saad Alshamas Ashaq to describe what happened and when and that they have a Modified Work Program to anyone that is injured and to have the doctor that is treating him to fill in the attached forms and return the forms back to her (1 page).
Exhibit "26" - Copy of four letters that WSIB sent to benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828 on January 20, 2024, February 2, 2024, March 7, 2024, and March 14, 2024. The February 2, 2024 WSIB letter sent to Saad Alshamas Ashaq included information and instructions related to his claim for WSIB benefits. Under the heading, “Reporting material change in circumstances”, it is stated that, “You must report the following changes in your circumstances to us within 10 days of the change, to make sure your benefits are not reduced or stopped: (1) an improvement or worsening in your condition; (2) an increase or decrease in your wages; (3) beginning to get, or changes to your Canada Pension Plan disability benefits; (4) a change in your job duties or hours; and (5) a change in your ability to co-operate in treatment, early and safe return-to-work activities, or work reintegration program”. It is also stated that, “Please contact us if you’re not sure whether you need to tell us about a change. We can review the information and decide if we need to make adjustments to your benefits”. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (11 pages).
Exhibit "27" - Copy of medical report entitled, “FAF (Functional Ability Form for Planning Early and Safe Return to Work)”, authored by family physician, Dr. Taiwo Ajayi, of 400 Dundas Medical Clinic and dated January 18, 2024, in respect to Saad Alshamas Ashaq and WSIB claim #32643828, which indicates that the date that the patient was assessed was January 18, 2024 and that the patient is physically unable to return to work at this time and with recommended date of next appointment is “January 29, 2024”. The document had been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (2 pages).
Exhibit "28" - Copy of medical notes in medical file of benefits claimant Saad Alshamas Ashaq and WSIB claim #32643828 entitled, “Documentation for Saad Sameer Jirjees Alshamas Ashaq”, by family physicians, Dr. Taiwo Ajayi and Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic and dated January 18, 2024, February 1, 2024, February 6, 2024, February 15, 2024, and February 24, 2024. In the February 15, 2024 follow-up, Dr. Mechetiuc noted that Saad Alshamas Ashaq had started yesterday to have shockwave therapy and Ultrasound at Physio and cannot lift more than 2 lbs. and that Saad Alshamas Ashaq had ordered his elbow brace yesterday and is waiting for it, and that he continues to have pain in both elbows radiating to his fingers and feels numbness, and that for his bilateral elbow epicondylitis he is prescribed Meloxicam and instructed to apply ice locally and to take 2 more weeks off until assessed by WSIB. The document has been entered as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 (7 pages).
1. INTRODUCTION
1Scores of people from many different places in the world have settled in Canada, and as a result, besides the official languages of English and French many languages and dialects are spoken in Canada, including indigenous languages. And, because of the many languages spoken in Canada, for criminal and quasi-criminal trials or court-related proceedings where a person does not speak one of the two official languages of either English or French, then a qualified interpreter in the language of the person charged with an offence must be provided for the accused person. This right to an interpreter in criminal and quasi-criminal proceedings is guaranteed under s. 14 of the Charter of Rights and Freedoms. However, even though this Charter right to an interpreter does not apply to non-court related services that may be provided by government agencies or government institutions, many government agencies or government institutions, such as hospitals, have set up a system where a person can request an interpreter in a language other than English or French to facilitate communication with doctors, nurses, and hospital staff.
2For the present charge before the court, Saad Sameer Jirjees ALSHAMAS ASHAQ, the defendant, has been charged with committing the regulatory offence of “knowingly making a false or misleading statement or representation about his functional ability to the Workplace Safety and Insurance Board (“WSIB”) in connection with his claim for benefits” between January 18, 2024 to February 28, 2024 in the City of Mississauga, contrary to s. 149(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16 (“W.S.I.A., 1997”). The defendant had sustained a workplace injury while employed at Downsview Woodworking Ltd. in December of 2023 and on February 2, 2024, the WSIB had initially granted the defendant benefits consisting of loss of earnings, health care, and return-to-work services, due to the defendant having a repetitive strain injury to the defendant’s left elbow and arm, retroactive to January 18, 2024. Shortly after being granted WSIB benefits, the defendant also reported the same type of strain injury occurring in his right elbow and arm to Dr. Adriana Mechetiuc, his family doctor, on February 6, 2024.
3However, the prosecution contends that the defendant had knowingly misrepresented his functional ability and the level of his impairment to the WSIB to maintain his claim for benefits from January 18, 2024, to February 28, 2024. Specifically, the prosecution contends that during that period the defendant had portrayed himself to the WSIB as being unable to return to work due to his diminished level of functional ability in order to maintain receiving “loss of earnings” benefits. Moreover, the prosecution submits that the surveillance conducted on the defendant and the surveillance videos taken of the defendant from February 10, 2024, to February 26, 2024, shows that the defendant had been engaged in and doing activities that the defendant had told the WSIB that he could not do. In addition, the WSIB Investigators had obtained a statement from the defendant in which the defendant had agreed that he had been carrying 6 to 40 lb. weighted objects on February 22, 2024, that had been shown in the video surveillance recording and which had indeed exceeded his health professionals’ restrictions and limitations that had been put on the defendant of not lifting objects weighing more than 5 kg. without taking a rest break after 5 minutes. In addition, Dr. Mechetiuc had limited and restricted the defendant to driving a motor vehicle for not more than 10 kms. on February 24, 2024, 2 days after the defendant had driven a Double AA Woodworking Ltd. truck by himself from the City of Brampton to the City of Waterloo on February 22, 2024, which is 91 kms. in distance. Double AA Woodworking Ltd. is a business owned by the defendant’s friend named Sam and is not associated with his original employer, Downsview Woodworking Ltd. On February 26, 2024, the defendant had been surveilled and observed at the Double AA Woodworking Ltd. premises in Brampton locking and unlocking the door to the premises, which is located 19.6 kms. from his residence in Mississauga.
4Moreover, the prosecution also contends that the expert medical opinion of Dr. Matthew Krievens admitted at trial supports the prosecution’s contention that the defendant had misrepresented his functional abilities and level of impairment. Dr. Krievens had opined that the defendant’s activities that had been captured by the February 22, 2024, surveillance video did not align with the medical documents that had been provided by the defendant’s health professionals to the WSIB.
5The defence, on the other hand, argues that because the defendant’s first language is not English but Arabic, the defendant could not have, or did not, knowingly misrepresent his level of functional abilities to the WSIB because the defendant had not completely comprehended or understood his conversations and dealings with the WSIB Case Managers or with the WSIB Return-To-Work Specialist or with his health professionals, since the defendant had not been provided with an Arabic interpreter, even though the defendant had informed the WSIB that his preferred language was Arabic in his Form 6 claim. In other words, the defence contends that because the defendant had been inevitably forced to communicate in the English language and without an interpreter in his conversations with the WSIB and with his health professionals, then the defendant’s inability to properly communicate in the English language would make the defendant’s representations or communications with the WSIB and with the defendant’s health professionals beset with misunderstandings and errors, so that the defendant’s statements or representations to the WSIB and to the defendant’s health professionals cannot be accepted as proof beyond a reasonable doubt that the defendant had “knowingly making a false or misleading statement or representation concerning his functional ability to the WSIB in connection with his claim for benefits”. As such, the defence submits that this circumstance of the defendant’s lack of proficiency in the English language while dealing with the WSIB and with his health professionals would create reasonable doubt about whether the defendant had committed the actus reus of the s. 149(1) offence, as well as reasonable doubt about whether the defendant had the necessary mens rea for the s. 149(1) offence.
6The issue of the defendant’s comprehension of the English language and the defendant not being provided an interpreter arises because the defendant, who was born in Iraq and who had used the services of an Arabic language interpreter with an Iraqi dialect at trial, contends that he had not been provided with an Arabic language interpreter in his communications with the WSIB or with his health professionals, even though the defendant had stated that his preferred language had been Arabic on the Form 6 (Worker’s Report of Injury/Illness) claim form that had been submitted by the defendant to the WSIB (see Exhibit #1). However, the defendant had not requested or indicated explicitly or unequivocally in writing on the Form 6 claim form that he had required an “Arabic interpreter”, nor, as his WSIB Case Manager had testified to, did the defendant make an oral request for an Arabic interpreter when he had initially communicated with his WSIB Case Manager about his claim for workplace injury benefits. Moreover, the defendant had also used and communicated in English with his WSIB Case Manager, with his WSIB Return-To-Work Specialist, and with his healthcare professionals and did not cause the WSIB Case Manager nor the WSIB Return-To-Work Specialist to have any concerns about communicating with the defendant in the English language.
7In addition, the defence contends that the defendant had testified at trial that he had orally and formally requested an Arabic language interpreter on several occasions when he spoke with WSIB staff, even though neither the WSIB Case Manager nor the WSIB Return-To-Work Specialist had noted in their memorandums of conversations with the defendant that the defendant had actually requested an Arabic interpreter. In particular, on page 6 of the memorandum #A011 prepared by WSIB Case Manager Sabiha Kazi on February 6, 2024 (see Exhibit #2), it is stated “No” under the heading, “Interpreter Requested”. In addition, the defendant’s WSIB Case Manager and the WSIB Return-To-Work Specialist had testified at trial that they had no difficulty in communicating with and understanding the defendant in the English language, and as a result, they did not obtain nor provide an Arabic interpreter for the defendant for their telephone conversations concerning his workplace injury, recovery, functional abilities, or his return-to-work plan. And, even though the defendant was not provided with an Arabic interpreter, the WSIB has nevertheless set up a system in which an interpreter would be provided to a worker in regard to their claim for WSIB benefits, if an interpreter is explicitly requested by the worker or when WSIB personnel feel that a worker needs the services of an interpreter in their dealings and communication with the WSIB. More importantly, medical or health professionals, especially doctors, are also ethically required to ensure that they can properly communicate with their patients before prescribing medications or treatment, which may require the health professional to utilize an “on-the-phone” professional medical interpreter in the language of the patient, in order to improve patient safety, ensure informed consent, and to comply with the Ontario Human Rights Code.
8First of all, on the interpreter and comprehension of the English language issue, the defendant’s command of the English language is not as weak as being portrayed by the defence, nor is the defendant’s comprehension and proficiency in the English language so deficient or inadequate that he had not been able to properly communicate with his WSIB Case Manager or with his WSIB Return-To-Work Specialist or with his health professionals about his level of functional ability or about the level of his impairment in respect to his entitlement to WSIB benefits. Also, the defendant had been residing in Canada since 2017 and had communicated with his WSIB Case Manager, with his WSIB Return-To-Work Specialist, and with his health professionals solely in the English language, and had also answered some questions using the English language and not in the Arabic language in his interview with WSIB Stakeholder Compliance Investigators Paul Cote and Mike Lagozny and at his trial without waiting for the question given in the English language to be translated into the Arabic language when an Arabic interpreter had been present. This shows the defendant’s ability to communicate in the English language is more proficient than what the defence contends it is. In addition, in completing the Form 6 (Worker’s Report Of Injury Or Illness) for his claim for WSIB work-injury benefits, the defendant had testified that he had used the Google Translate software application to translate the questions on the form in the English language to the Arabic language and also to translate his answers from the Arabic language to the English language, and had also testified that he had been assisted by his wife in completing the Form 6 claim for WSIB work-injury benefits. This shows the defendant had the ability to have documents, correspondence, or letters sent to him by the WSIB be translated into the Arabic language, so the defendant would understand the contents of the document, correspondence, or letter.
9Furthermore, the defendant also has a duty and a responsibility to ensure that he understands what is contained in any document, correspondence, or letter provided to him by the WSIB, even if the document is completely in the English language, and cannot instead be passive or wilfully blind about or not take any initiative in determining what is contained in a WSIB document, correspondence, or letter provided or sent to him. This may require the defendant to seek the assistance of a family member or friend or to contact the WSIB if he does not understand what is contained in any WSIB document, correspondence, or letter that the defendant receives, or the defendant could have continued to use the Google Translate software application to translate the content of the WSIB letters that had been sent to him in the English language.
10But more importantly, health professionals are legally and ethically required to ensure that they can properly communicate with their patients before prescribing treatment or medication, so that any contention that the defendant did not properly provide information or understand the communication between himself and his health professionals in respect to the medical reports completed and provided to the WSIB, is not an argument with merit. Accordingly, the defendant’s contention and argument that the defendant’s statements or representations to the WSIB and to the defendant’s health professionals being beset with misunderstandings and errors because the defendant did not have an Arabic interpreter, and therefore, cannot be accepted as proof beyond a reasonable doubt that the defendant had “knowingly making a false or misleading statement or representation concerning his functional ability to the WSIB in connection with his claim for benefits” is not convincing or persuasive, nor does it raise reasonable doubt about the defendant’s culpability in committing the s. 149(1) offence.
11Secondly, in order for the prosecution to prove the mens rea element of the s. 149(1) offence of “knowingly making a false or misleading statement or representation concerning his functional ability to the WSIB in connection with his claim for benefits” between January 18, 2024 to February 28, 2024, they do not have to legally prove beyond a reasonable doubt that the defendant had been aware of his obligation to inform the WSIB about a change in his functional ability or about the consequences of making a false or misleading statement or representation to the WSIB in connection with his claim for benefits, since the defendant had not been charged with committing an offence under s. 149(2) of the W.S.I.A., 1997, of “wilfully failing to inform the WSIB of a material change in circumstances in connection with his entitlement to benefits within 10 days after the change occurs”. Instead, the prosecution can prove the defendant had committed the s. 149(1) offence by proving beyond a reasonable doubt that the defendant had made a statement or representation concerning his functional ability to the WSIB or to his health professionals in connection with his claim for benefits; that the defendant’s statement or representation concerning his functional ability to the WSIB or to his health professionals in connection with his claim for benefits had been false or misleading or that they had been misrepresentations; that the defendant knew that the WSIB would rely on his statement or representation concerning his functional ability to the WSIB or to his health professionals in connection with his claim for benefits; and that the defendant knew that his statement or representation concerning his functional ability to the WSIB or to his health professionals in connection with his claim for benefits had been false or misrepresentations.
12Thirdly, the prosecution has met its burden in proving beyond a reasonable doubt that the defendant has committed the actus reus of the offence of “knowingly making a false or misleading statement or representation concerning his functional ability to the WSIB in connection with his claim for benefits” between January 18, 2024 to February 28, 2024 in the City of Mississauga. This is based on the videotape evidence entered as Exhibit #10 which undoubtedly shows the defendant lifting and carrying desks and cabinets weighing approximately 40 lbs. on February 22, 2024, for about 15 minutes without taking a rest break after 5 minutes and after having driven a Double AA Woodworking Ltd. truck by himself from Brampton to the City of Waterloo, which is approximately 91 kilometers in distance. This level of physical and functional ability demonstrated by the defendant on February 22, 2024, contradicts his representations and statements to the WSIB and to his health professionals, in which the health professionals’ medical reports that had been provided to the WSIB before February 22, 2024, had indicated that the defendant had been unable to return to work from January 18, 2024 to February 15, 2024, because the defendant’s health professionals had limited and restricted the defendant from lifting objects which weight more than 5 kilograms (approximately 11 pounds) without taking a rest break after 5 minutes. However, In the February 15, 2024 follow-up notes by Dr. Mechetiuc (see Exhibit #28), Dr. Mechetiuc had noted that the defendant had started to have shockwave therapy the day before and had an Ultrasound at Physio and cannot lift more than “2 lbs.” and that the defendant had ordered his elbow brace the day before and is waiting for it, and that the defendant continues to have pain in both elbows radiating to his fingers and feels numbness. In addition, the defendant had been under surveillance by a private investigation firm hired by the defendant’s employer and that the defendant or the defendant’s motor vehicle had been observed driving to or parked at the Double AA Woodworking Ltd. parking lot or in the area of their premises located at 83 Nugget Court in Brampton for several hours at a time on February 15th, 22nd, 23rd, and 26th in 2024, which contradicts the defendant’s statements or representations to his WSIB Case Manager that that he had seen minimal improvements, had experienced numbness in his fingers, had found it difficult to complete daily activities of daily living at home, such as vacuuming, and had also reported that he would stay home all day and rest, and that the defendant had also reported having difficulty with lifting and holding a telephone for more than 30 seconds, and so did not do any lifting at home.
13Fourthly, the prosecution has also proven beyond a reasonable doubt that the defendant had the requisite mens rea in committing the actus reus of the s. 149(1) offence, since the defendant had himself initiated the claim for WSIB benefits by filing the Form 6 document entitled “Worker’s Report of Injury/Illness” (see Exhibit #1) that detailed his workplace injury. And, because the defendant was subsequently granted entitlement on February 2, 2024, to receive WSIB loss of earnings, health care and return-to-work services benefits, the defendant knew that a workplace injury claim provided the defendant with these benefits and that the defendant also knew that such benefits would continue as long as there had been no improvement in his level of functional ability or impairment, since he had informed the WSIB Case Manager several times about the lack of improvement in his functional ability or impairment, so that his WSIB benefits would continue to be paid and provided to him. Furthermore, in a WSIB letter dated February 2, 2024 (see Exhibit #26), that had been sent to the defendant, the defendant had been provided with information and instructions related to his claim for WSIB benefits. In that letter, under the heading, “Reporting material change in circumstances”, it had been explicitly stated that, “You must report the following changes in your circumstances to us within 10 days of the change, to make sure your benefits are not reduced or stopped: (1) an improvement or worsening in your condition; (2) an increase or decrease in your wages; (3) beginning to get, or changes to your Canada Pension Plan disability benefits; (4) a change in your job duties or hours; and (5) a change in your ability to co-operate in treatment, early and safe return-to-work activities, or work reintegration program. It is also explicitly stated in the letter that, “Please contact us if you’re not sure whether you need to tell us about a change. We can review the information and decide if we need to make adjustments to your benefits”. Based on this information in the WSIB letter dated February 2, 2024, the defendant had been made aware that his WSIB benefits could be reduced or stopped if he reported an improvement of his condition or functional ability, but that reporting the worsening of his condition or reporting that there had been no improvement in his level of functional ability could also have the opposite effect of not reducing or stopping his WSIB benefits.
14In addition, the defendant contends that he had only be doing an “one-of” or an “one-time” test of his functional abilities on February 22, 2024, in order to determine if he could be able to return to work, and since he had felt significant pain afterwards, the defendant did not believe he had to inform the WSIB of the strenuous physical activities he had undertaken and been engaged in on February 22, 2024. However, this mistake of fact contention relied on by the defence to negate the mens rea element for the s. 149(1) offence is a recent fabrication and is not credible, nor does it have an air of reality because the defendant did not inform the WSIB Investigators about this “one-time-only” test of his functional abilities during their interview with him on September 12, 2024, when he had been shown the February 22, 2024, video of him lifting and carrying objects weighing up to 40 lbs. and had been asked by WSIB Investigator Paul Cote about his functional ability, and had only raised this so-called “one-time” test of his functional abilities for the first time at trial. Furthermore, the defendant’s contention that the defendant’s physical activities of lifting and carrying objects weighing up to 40 lbs. had only been an “one-of” test of his functional abilities is not credible, since the defendant did not do this test of his physical and functional abilities in front of the physiotherapist who had been treating the defendant, nor did the defendant obtain medical approval from his health professionals to undertake in such a strenuous physical activity that could negatively affect his recovery before he had engaged in that physical activity on February 22, 2024.
15Moreover, because the defendant had communicated and represented to his WSIB Case Manager that he had seen minimal or no improvements in his functional abilities, that he had experienced pain and numbness in his fingers and had found it difficult to complete daily activities of daily living at home, such as vacuuming, and that he had also reported that he would stay home all day and rest, and that the defendant had also reported having difficulty with lifting and holding a telephone for more than 30 seconds, and so did not do any lifting at home, the defendant’s mistake of fact contention that he did not believe that he had to report the physical activity he had engaged in on February 22, 20024, does not have an air of reality. Moreover, the defendant’s mistaken belief that he did not have to inform the WSIB about his strenuous physical activity of lifting and carrying objects weighing up to 40 lbs. on February 22, 2024, does not have an air of reality when consideration is taken of the limitations and restrictions that had been placed on him by his health professionals about not lifting objects weighing more than 5 kg. without taking a rest break after 5 minutes and also when consideration is taken of the number of days the defendant had been surveilled and observed attending the Double AA Woodworking Ltd. premises and remaining there for many hours on several days, especially when the defendant had informed his WSIB Case Manager on February 23, 2024, one day after the defendant had engaged in the strenuous physical activity, that there had been no changes since their last conversation and no improvements in respect to his activities of daily living.
16Accordingly, on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the s. 149(1) offence and also proven beyond a reasonable doubt that the defendant had the requisite mens rea in committing the actus reus of the s. 149(1) offence. Ergo, the defendant is guilty of committing the offence of “knowingly making a false or misleading statement or representation concerning his functional ability to the Workplace Safety and Insurance Board in connection with his claim for benefits” between January 18, 2024 to February 28, 2024 in the City of Mississauga, contrary to s. 149(1) of the W.S.I.A., 1997.
17In addition, the trial of the defendant’s s. 149(1) charge was held over three days: October 30, October 31, and November 1 of 2025. At the trial, three witnesses testified. They were 2 witnesses for the prosecution and 1 witness for the defence. The prosecution witnesses were Sabiha Kazi, the WSIB Case Manager of the defendant’s benefit claim at the time the benefits were suspended and Melissa Kerswell, the WSIB Return-To-Work Specialist; while the defence witness had been the defendant. Both prosecution witnesses gave credible and trustworthy testimony. However, the defendant’s testimony was not credible or forthright, nor did the defendant’s testimony create any reasonable doubt about the defendant’s guilt in committing the s. 149(1) offence.
18After the witnesses’ testimony had been completed, the trial was then adjourned to March 2, 2026, for judgement, and for written submissions and written reply submissions to be submitted by both the prosecution and defence before November 30, 2025. Written submissions were then received by the court from both the prosecution and defence on November 18, 2025, November 25, 2025, and November 28, 2025, respectively. After considering the evidence adduced at trial, applicable law and the written submissions, these therefore are the written reasons for judgment:
2. BACKGROUND
19At the time of his workplace injury, the defendant had been employed as a computer numerical control operator at Downsview Woodworking Ltd. located at 2635 Rena Road, Mississauga, Ontario. The defendant also drove a forklift and prepared materials as part of his duties. He had been employed there since June 19,2017, shortly after emigrating from Sweden. The defendant had arrived in Canada on May 3, 2017. The defendant’s workplace injury had been the result of lifting, pulling, and pushing various lengths and weights of wood sheets and boards that involved repetitive movements over an 8-to-9-hour shift, which had caused the defendant to have "mild lateral epicondylitis" (also referred to commonly as “tennis elbow”), as had been diagnosed by Dr. Chatha from the X-ray and ultrasound of both of the defendant‘s elbows and arms (see Exhibit #14). The defendant’s injury had prevented the defendant from lifting objects without feeling pain. Furthermore, the defendant also indicated on the Form 6 (Worker’s Report Of Injury Or Illness) submitted to the WSIB that he had begun feeling pain in his left elbow on December 8, 2023, and had reported his issues with his left elbow to his supervisor, Yousif Thamer, on January 10, 2024. In addition, the defendant had also visited his family physician on January 13, 2024, who had completed the Form 8 (Health Professional’s Report), which had also been submitted to the WSIB. The defendant had submitted his Form 6 claim for benefits to the WSIB on January 15, 2024, and then informed his employer, Downsview Woodworking Ltd., by email to Employer Representative Tania D’Uva on January 15, 2024, about his WSIB workplace injury claim.
20On January 17, 2024, the defendant then met with physiotherapist Venkata Devi S.K. Gajula for an initial assessment. Physiotherapist Gajula then submitted a medical report to the WSIB entitled, “Musculoskeletal (MSK) program of care: Initial assessment report”, dated January 17, 2024 (see Exhibit #7), that indicated that the defendant had been unable to do lifting from floor to waist, unable to do lifting from waist to shoulder, and unable to do lifting above shoulder, and that the defendant’s pushing/pulling was limited to 0 to 5 kg.
21The defendant then met with Dr. Taiwo Ajayi on January 18, 2024, to prepare a “Functional Ability Form for Planning Early and Safe Return to Work” (FAF form) (see Exhibit #27), in which it had been indicated by Dr. Ajayi that the defendant had been unable to return to work at that time.
22The WSIB Eligibility Adjudicator then awarded the defendant loss of economic, health care, and return-to-work services benefits on February 2, 2024, that was retroactive to January 18, 2024.
23The defendant then met with Dr. Adriana Mechetiuc to prepare a Functional Ability Form on February 1, 2024 (see Exhibit #6), in which it had been noted by Dr. Mechetiuc that the defendant had been unable to return to work at that time and that the defendant is in a lot of pain in his left elbow and cannot lift, pull anything with his left arm, and that he has started Physiotherapy and NSAIDs [non-steroidal anti-inflammatory drugs], and needs more time to see improvement from these treatments.
24The WSIB also sent the defendant a letter dated February 2, 2024 (see Exhibit #26) that included information and instructions related to his claim for WSIB benefits. Under the heading, “Reporting material change in circumstances”, it is stated that, “You must report the following changes in your circumstances to us within 10 days of the change, to make sure your benefits are not reduced or stopped: (1) an improvement or worsening in your condition; (2) an increase or decrease in your wages; (3) beginning to get, or changes to your Canada Pension Plan disability benefits; (4) a change in your job duties or hours; and (5) a change in your ability to co-operate in treatment, early and safe return-to-work activities, or work reintegration program”. It is also stated in the letter that, “Please contact us if you’re not sure whether you need to tell us about a change. We can review the information and decide if we need to make adjustments to your benefits”.
25Then, on February 5, 2024, the defendant had spoken by telephone with WSIB Case Manager Sabiha Kazi. WSIB Case Manager Kazi then prepared memorandum #A0011 entitled, “ICAP – INITIAL CASE ASSESSMENT AND PLAN”, on February 6, 2024, regarding the defendant (see Exhibit #2). The Memorandum indicates on page 2, that WSIB Case Manager Kazi had explained the re-employment obligation to the defendant. On page 3, it was initially noted that the date of anticipated return to regular work was on February 10, 2024. On page 6, it is noted that the worker’s language is English and also noted by WSIB Case Manager Kazi that “No” interpreter had been requested by the defendant, and that the defendant has difficulty sleeping due to pain. On page 7, it is noted that the claim had been allowed for left arm and left elbow for health care and loss of earnings benefits beginning January 16, 2024. On page 8, it is noted that a Form 8 (Health Professional’s Report) dated January 15, 2024, had diagnosed left elbow/forearm repetitive strain injury and that the defendant had full walking abilities. On page 11, it is noted that as of February 19, 2024, the defendant was not improving with treatment and/or symptoms not well controlled, and as of February 20, 2024, the defendant had possible apprehension and/or avoidance of activity or movement.
26Next, the defendant again met with Dr. Adriana Mechetiuc on February 6, 2024, in which it had been noted on the Functional Ability Form prepared by Dr. Mechetiuc (see Exhibit #7), that the defendant had been unable to return to work at that time, and that the defendant had started now to develop pain in the right elbow, similar to the left elbow, and tenderness on the lateral epicondylitis, and that the defendant was sent to do X-ray and Ultrasound of this elbow as well, and advised to start Physio for this elbow too, and to continue for the left elbow too.
27Then, on February 6, 2024, the defendant again spoke by telephone with WSIB Case Manager Sabiha Kazi. WSIB Case Manager Kazi then prepared memorandum #A0012 entitled, “RTW SERVICES REFERRAL MEMO”, on February 6, 2024, regarding the defendant (see Exhibit #3). On page 2 of the memorandum, it is indicated that the defendant’s language of service is English and under the heading, “Worker Preferred Language other than English or French”, there had been no notes added. On page 3, it is noted that that the employer representative had also advised WSIB Case Manager Kazi that they do not think this is a work-related injury. In addition, on page 3, the functional abilities noted for the defendant were full abilities for walking, standing, sitting, bending/twisting and able to drive, but that lifting and push/pull was very limited to 0 to 5 lbs. and requires ongoing break after 5 minutes, and that the defendant had no ability to operate heavy equipment.
28Furthermore, from a medical report for the defendant dated February 7, 2024 and entitled, “Elbow (3/4) Musculoskeletal”, authored by Dr. Deep Chatha, who had reviewed the right elbow X-ray, it had been noted that the X-ray had revealed that, “There is no acute fracture, joint effusion or olecranon bursitis”, that “The joint spaces are well-preserved with no productive or erosive disease”, and that “There are no surrounding soft tissue calcifications”, and as such, Dr. Chatha concluded that there is “No bony injury or arthritic changes”. As for the right elbow ultrasound, Dr. Deep Chatha said that the ultrasound had indicated that, “The footplate of the common extensor tendon is thickened and hypoechoic over region measured 0.6 x 0.4 cm and is in keeping with epicondylitis; that “The common flexor tendon footplate is normal”; that “The biceps and triceps tendon insertions are intact; that “There is no joint effusion or olecranon bursitis; and that the “ulnar nerve is normal in caliber”, and as such, Dr. Deep Chatha had concluded that it is “Mild lateral epicondylitis” for the defendant’s right elbow (see Exhibit #14).
29Then, on February 14, 2024, the defendant had met with physiotherapist, Alankrita Srivastava, who had prepared the “Musculoskeletal (MSK) program of care: mid-point report” dated February 14, 2024 (see Exhibit #8), which had indicated that the defendant’s epicondylitis swelling is only minimally improved and that the defendant is unable to perform his job duties because it’s making his symptoms worst, and that the defendant is still not able to do his job related duties, and the defendant’s abilities and restrictions for return-to-work planning included full abilities in walking, standing, sitting, and ability to drive a car and to use public transit, but that the defendant had been limited in lifting from floor to waist from 0 to 5 kg., limited to do lifting from waist to shoulder from 0 to 5 kg., and limited to do lifting above shoulder from 0 to 5 kg., and that the defendant was not ready to do any pushing/pulling.
30For the defendant’s next meeting with Dr. Adriana Mechetiuc, which had been on February 15, 2024, the Functional Ability Form prepared by Dr. Mechetiuc (see Exhibit #9), had indicated that the defendant had been unable to return to work at that time and that the defendant’s X-ray and Ultrasound of this elbow demonstrated epicondylitis, and that he had started Physio for both his elbows and that the defendant will use an elbow brace too.
31However, the defendant’s employer, Downsview Woodworking Ltd., did not believe that the defendant’s injury had been caused by a workplace injury, as well as suspecting that the defendant had been working elsewhere while collecting WSIB benefits, had hired Integra Investigation Services Ltd., a private investigation firm, to investigate and surveil the defendant (see surveillance video in Exhibit #17 and the investigation report in Exhibit #18). Integra Investigation Services Ltd. had conducted surveillance of the defendant on February 10, 12, 13, 15, 16, 20, 21, 22, 23, and 26 of 2024 and the investigation report indicated that the defendant had been observed either attending and driving from his residence to Double AA Woodworking Ltd. located at 83 Nugget Court, Brampton, or that observations had been made of the defendant’s Subaru motor vehicle parked at or near the Double AA Woodworking Ltd.. premises for many hours on February 15, 22, 23, and 26 of 2024. Double AA Woodworking Ltd. is owned by a friend of the defendant, named Sam, who also used to work at Downsview Woodworking Ltd.
32On February 22, 2024, Integra Investigation Services Ltd. surveilled the defendant and an observation had been made of the defendant driving a Double AA Woodworking Ltd. truck by himself from the Double AA Woodworking Ltd. premises in Brampton to the City of Waterloo and then carrying and lifting items by himself that weighed between 6 to 40 lbs. from the Double AA Woodworking Ltd. truck to a dental office for approximately 15 minutes without taking a rest break.
33The defendant’s employer, Downsview Woodworking Ltd., then sent the Integra Investigation Services Ltd. surveillance video of the defendant and the Integra Investigation Services Ltd. investigation and surveillance report to the WSIB on March 19, 2024.
34Then on February 23, 2024, a day after the defendant had been surveilled and videotaped driving from the City of Brampton to the City of Waterloo and carrying and lifting objects weighing up to 40 lbs. for approximately 15 minutes without taking a rest break, the defendant again spoke by telephone with WSIB Case Manager Sabiha Kazi. WSIB Case Manager Kazi then prepared memorandum #A0016 entitled, “RMAP - REVIEW, MONITOR AND ACTION PLAN”, on February 23, 2024, regarding the defendant (see Exhibit #4). WSIB Case Manager Kazi noted that the defendant has possible apprehension and/or avoidance of activity or movement; and as for the defendant’s health recovery, that the defendant is not improving with treatment and/or symptoms not well controlled; and that the defendant had reported no changes since their last conversation and no improvements in respect to activities of daily living. In addition, it had been noted that the injured worker’s pre-injury earnings were $1,122.00 a week and that there was a lack of accommodation and/or modified work available for the defendant.
35Then, the defendant met again with Dr. Adriana Mechetiuc on February 24, 2024, in which it had been noted in the Functional Ability Form prepared by Dr. Mechetiuc (see Exhibit #10), that the defendant had been unable to return to work and that the defendant’s X-ray and Ultrasound of this elbow demonstrated epicondylitis and that he had started Physio for both his elbows and will use an elbow brace too. Dr. Mechetiuc also noted that the defendant’s work is a carpenter and cannot do his job if not healed enough to be able to lift, twist, push with his arms. Also, it had been noted by Dr. Mechetiuc that for the defendant’s abilities and restrictions, they included full abilities in walking, standing, sitting, stair climbing, ladder climbing, and the ability to drive a car but for less than 10 kilometers, and the ability to use public transit, but that the defendant had been limited in lifting from floor to waist up to 5 lbs., limited to do lifting from waist to shoulder up to 5 lbs., and that the defendant was also limited in pushing/pulling with his left and right arm and restricted in operating motorized equipment such as a forklift.
36The defendant then attended a Return-to-Work Plan meeting with WSIB Return-To-Work Specialist Melissa Kerswell on February 28, 2024. WSIB Return-To-Work Specialist Melissa Kerswell then prepared memorandum #A0018 entitled, “RTW [RETURN-TO-WORK] MEETING MEMO/PLAN” on February 29, 2024 (see Exhibit #15), after the meeting on February 28, 2024, with the defendant, employer representative Tania D’Uva, and worker representative Thamer Yousif, in which it is indicated that in conversation with the defendant on February 23, 2024, the defendant had full abilities in walking, standing and sitting and bending/twisting; and that lifting was very limited to 2lbs., but requires ongoing break after 5 minutes; and that for push/pull functional ability it was very limited to 2 lbs. but requires ongoing break after 5 minutes; and that the defendant had the ability to drive, but could not operate heavy equipment.
37Then, on March 7, 2024, the defendant again spoke by telephone with WSIB Case Manager Sabiha Kazi about the defendant injuring his right hand and cutting his right hand at the defendant’s residence. WSIB Case Manager Kazi then prepared memorandum #A0020 entitled, “Update on AOI [ACCIDENT OR INJURY], Non-Occupational Change in Circumstances, and Entitlement to PLOE [PARTIAL LOSS OF EARNINGS] Decision Memo”, on March 7, 2024. The memorandum indicates that the defendant had confirmed that there is a non-occupational change in the circumstances from February 29, 2024 to March 11, 2024, and that WSIB Case Manager Kazi had indicated to the defendant that there would be no entitlement to loss of earnings benefits from February 29, 2024 to March 11, 2024. In addition, WSIB Case Manager Kazi had noted that the defendant had confirmed that he would return to work on March 11, 2024, as per the Return-To-Work Plan.
38Then, on March 11, 2024, the defendant again spoke by telephone with WSIB Case Manager Sabiha Kazi. WSIB Case Manager Kazi then prepared memorandum #A0022 entitled, “Call from IP [INJURED PERSON] re: RTW [RETURN TO WORK]”, on March 11, 2024 (see Exhibit #12). The memorandum indicated that the defendant’s employer, Downsview Woodworking Ltd., had informed the defendant by email on Sunday, March 10, 2024, that there had been a change to the defendant returning back to work, and for the defendant not to return to work until the employer reviews the claim with the case manager and the WSIB. WSIB Case Manager Kazi then noted that she had a telephone call on March 11, 2024, with AE rep Safety First, Rochelle Fajertag, who advises of a new situation regarding fraud and that the AE rep has video surveillance and that an investigator had followed the defendant beginning January 2024, and that the defendant was working at this time for another job, lifting large desk, and believes that the defendant was completely fraud while on WSIB benefits beginning January 2024, and that the AE rep advised the WSIB Case Manager that the employer does not want the defendant to return to work due to this information.
39On May 23, 2024, WSIB Case Manager Sabiha Kazi then prepared memorandum #A0034 entitled, “Overpayment” (see Exhibit #13), regarding the defendant, in which she notes, as per narrative report uploaded onto file on 19MARCH2024, the defendant had functional abilities and was able to return to work and misrepresented his level of function. Then, WSIB Case Manager Kazi notes that this new information and the functional abilities observed in the narrative and surveillance video, that loss of earnings benefits are not in order as the defendant had functional abilities to return to work to pre-injury duties, and therefore, she concluded that she is unable to allow loss of earnings benefits beginning 18JAN2024.
40After receiving and viewing the February 22, 2024, surveillance videotape showing the defendant lifting and carrying objects that had exceeded the defendant’s physical and medical restrictions and limitations to not lift objects weighing more than 5 kg. for more than 5 minutes without taking a rest break and the surveillance report of the defendant being surveilled and observed from February 10, 2024 to February 26, 2024, that had listed observations of the defendant driving a motor vehicle continuously for more than 10 kms. on February 26, 2024, that had exceeded his medical restriction and limitation of not driving a motor vehicle for more than 10 kms., as directed by Dr. Mechetiuc on February 24, 2024, the WSIB by a decision letter entitled, “Review of Loss of Earnings Entitlement”, dated June 18, 2024 (see Exhibit #1), had notified the defendant that the WSIB had terminated the defendant’s benefits retroactive to January 18, 2024, and had referred the matter to their investigation and prosecution department. In addition, WSIB Case Manager Mayra had sent that decision letter to the defendant, which outlines the WSIB reasons for the defendant not being entitled to receive the “loss of earnings” benefit because the WSIB had determined that the defendant had misrepresented his level of function, as the WSIB had confirmed that the defendant had been able to drive, lift, and carry tools and equipment. The June 18, 2024 letter also states that the defendant’s conversations with the WSIB Case Manager on February 5, 2024, February 23, 2024, March 7, 2024, March 18, 2024, and April 15, 2024, in which the defendant had indicated that he had seen minimal improvements, had experienced numbness in his fingers, had found it difficult to complete daily activities of daily living at home, such as vacuuming and had also reported that he would stay home all day and rest, and had also reported having difficulty with lifting and holding a telephone for more than 30 seconds and so did not do any lifting at home.
41In addition, the defendant had met with WSIB Investigators Paul Cote and Mike Lagozny on September 12, 2024, at the Central Library in Mississauga. The defendant then provided a cautioned and voluntary statement to the WSIB Investigators with the assistance of an Arabic interpreter. The interview had lasted one hour and 48 minutes and had been recorded and transcribed (see Exhibits #18 and #19).
42After the investigation of the defendant was completed by the WSIB, the WSIB charged the defendant on February 24, 2025, with the Part III regulatory offence of "knowingly making a false or misleading statement or representation concerning his functional ability to the Board in connection to a claim for benefits”, contrary to s. 149(1) of the W.S.I.A., 1997. In addition, the defendant had been paid “loss of earnings” benefits from January 16, 2024 until May 27, 2024, and the WSIB had determined that the defendant had not been entitled to receive loss of earnings benefits between January 18, 2024 to May 27, 2024, because the defendant had misrepresented his level of functional ability to the WSIB and had been able to return to work doing his pre-injury duties, and had calculated that the overpayment to the defendant had been in the amount of $12,753.89.
3. THE CHARGE
43In the Part III Information #3160-999-25-10253, that had been received by the court on February 24, 2025, the defendant had been charged with committing the following regulatory offence, as particularized:
Saad Sameer Jirjees ALSHAMAS ASHAQ between the 18th day of January, 2024 and the 28th day of February, 2024 at the City of Mississauga in the Central West Region did commit the offence of knowingly making a false or misleading statement or representation to the Workplace Safety and Insurance Board in connection with his claim for benefits and did thereby commit an offence contrary to Section 149(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, Chapter 16, as amended.
PARTICULARS: From January 18th to February 28th, 2024, Saad Sameer Jirjees ALSHAMAS ASHAQ, based on his activities as depicted in surveillance video, knowingly misrepresented his functional abilities to the Workplace Safety and Insurance Board in connection with his claim for benefits.
4. APPLICABLE LAW
44The defendant has been charged with committing an offence under s. 149(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“W.S.I.A., 1997”), which provides that a person is guilty of an offence 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:
Offence, false or misleading statement
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.
45The limitation period in the W.S.I.A., 1997 is contained in s. 157.1(1), which provides that a prosecution for an offence under the Act shall not be commenced more than two years after the day on which the most recent act or omission upon which the prosecution is based comes to the knowledge of the Board, unless it is an offence under s. 149, as it is in the case at bar, then there is no limitation period [emphasis is mine below]:
Restriction on prosecution
157.1(1) A prosecution for an offence under this Act shall not be commenced more than two years after the day on which the most recent act or omission upon which the prosecution is based comes to the knowledge of the Board.
Exception
(2) Despite subsection (1), there is no limitation period for prosecuting an offence under section 149.
46The general penalty section in the W.S.I.A., 1997 is provided for in s. 158(1), which provides that if an individual is convicted of an offence under the Act, then they are liable to a maximum fine of $25,000, or to imprisonment of not more than 6 months, or to both [emphasis is mine below]:
Penalty
158(1) A person who is convicted of an offence is liable to the following penalty:
If the person is an individual, he or she is liable to a fine not exceeding $25,000 or to imprisonment not exceeding six months or to both.
If the person is not an individual, the person is liable to a fine not exceeding $500,000.
Fines
(2) Any fine paid as a penalty for a conviction under this Act shall be paid to the Board and shall form part of the insurance fund.
5. ARGUMENT
(A) Prosecution Submissions
47The Prosecution argues that they have proven that the defendant had committed the s. 149(1) offence beyond a reasonable doubt by misrepresenting to the WSIB his ability to function in excess of his previously recognized and compensable functional abilities, since he had knowingly portrayed himself as incapable of engaging in certain physical or functional activities, which had the effect of prolonging his entitlement to benefits.
48In respect to proving the actus reus element of the s. 149(1) offence, the prosecution submits that the evidence adduced at trial demonstrates that the defendant had committed the actus reus of making a false representation to the WSIB by continuing to give the impression, through his medical practitioners or through conversations with WSIB staff, that he was incapable of engaging in certain physical or functional abilities in January and February of 2024.
49Moreover, the prosecution contends that during the months of January and February of 2024, the defendant had put on the impression that he could not return to work due to the severity of his injury, which had been based on the physical assessments completed by the defendant’s family physician or treating physiotherapist. In particular, the prosecution contends that in the defendant’s most recent “Functional Abilities Form” dated February 24, 2024 (see Exhibit #10) that had been submitted to the WSIB, stated that the defendant was physically unable to return to work, despite the physical activities he had been engaged in that had been captured on surveillance video two days earlier on February 22, 2024.
50Furthermore, the prosecution submits that an examination of the medical reports submitted to the WSIB just prior to and after the surveillance video of the defendant on February 22, 2024, are also relevant to showing the defendant’s misrepresentation of his level of functional ability to the WSIB. In particular, the prosecution submits that the defendant had attended a physiotherapy appointment on February 14, 2024 and had advised his physiotherapist that his pain was still the same as before and that the defendant had believed that returning to work and doing his work activities would make his condition worse. Consequently, based on a physical assessment, the defendant‘s physiotherapist provided the following restrictions for the defendant’s activities: the defendant was limited to lifting 0 to 5 kg. from floor to waist, from waist to shoulder, and above the shoulder, with no pushing or pulling, and no bending or twisting of his wrist/forearm (see Exhibit #8).
51In addition, the prosecution also contends that on the very next day, on February 15, 2024, the defendant had obtained a “Functional Abilities Form” from his family physician that had been submitted to the WSIB, which had indicated that the defendant was physically unable to return to work at that time (see Exhibit #9). During this particular assessment, the prosecution submits that the defendant’s physician had documented in the defendant’s medical records that the defendant was unable “to lift more than 2 lbs” (see Exhibit #28, p. 7). Furthermore, whether this had been based on the defendant’s own words, or on a demonstration with a pen or water bottle, the prosecution contends that is beside the point, since the defendant had acknowledged in cross-examination that it had been possible that he had said that to his doctor.
52Moreover, the prosecution submits that just a few days later, on February 22, 2024, the defendant had been captured on surveillance video engaging in the exact activities the defendant had continued to maintain to the WSIB and to his health professionals that he could not do. In particular, over the course of the videorecording of the defendant on February 22, 2024, the prosecution submits that the defendant can be observed removing items from a delivery truck by himself, such as boxes, long boards, and cabinet or drawer fronts. But more importantly, the prosecution submits that during the defendant’s testimony, the defendant had admitted that every item he carried and shown in the videorecording had weighed more than 2 lbs., and that most items had weighed between 6 lbs. to 40 lbs. In addition, the prosecution further submits that the videorecording also shows that the defendant’s activity on February 22, 2024, had been repetitive, and that the defendant had indicated on cross-examination that this activity of carrying and lifting items had spanned over approximately 15 minutes without a break. Then a day after those activities of lifting and carrying objects between 6 lbs. to 40 lbs. over a period of 15 minutes without a break on February 22, 2024, the prosecution submits that the defendant had reported to WSIB Case Manager Kazi on February 23, 2024, that there had been no changes and no improvements to his condition (see Exhibit #4).
53Furthermore, the prosecution submits that on February 24, 2024, only two days after the defendant’s activities of carrying and lifting items between 6 lbs. to 40 lbs. on February 22, 2024, the defendant’s family physician, Dr. Mechetiuc, notified the WSIB through a “Functional Abilities Form” (see Exhibit #10) that the defendant was physically unable to return to work at that time. The February 24, 2024 Functional Abilities Form also listed a number of abilities and/or restrictions, including that the defendant had full abilities to walk, stand, sit, climb stairs and ladders, but that lifting from floor to waist was restricted to no more than 5 lbs., that lifting from waist to shoulder was restricted to no more than 5 lbs., that pushing or pulling with either arm was limited, that operating motorized equipment such as a forklift was restricted, and that the defendant was able to drive a car but was limited to driving not more than 10 kilometers. Furthermore, the prosecution submits that Dr. Mechetiuc had further noted that the defendant had started to also develop pain in the right elbow, similar to the defendant’s left elbow, with tenderness on the lateral epicondylitis that that the defendant’s X-ray and ultrasound of the defendant’s elbow demonstrated epicondylitis and that the defendant had started Physio as treatment for both of the defendant’s elbows and that the defendant will also use an elbow brace. In addition, Dr. Mechetiuc also noted that the defendant works as a carpenter and cannot do his job if the defendant is not healed enough to lift, twist, or push with his arms. Furthermore, Dr. Mechetiuc indicates that his medical assessment of the defendant’s abilities and restrictions applies for approximately 8 to 14 days.
54As for the expert medical report from Dr. Matthew Krievens, the prosecution argues that it shows that the defendant had continued to report that he had bilateral elbow pain into May, June, and July of 2024, which resulted in continued limitations in lifting, gripping and pinching (see Exhibit #21, at p. 9). In addition, the prosecution submits that in his expert opinion, Dr. Krievens had concluded that the defendant’s reporting of bilateral elbow pain had been completely inconsistent with the activities the defendant had engaged in on February 22, 2024, that had been captured on surveillance video. As such, the prosecution contends that this expert opinion evidence of Dr. Krievens and the evidence adduced at trial provides the requisite proof that the defendant had portrayed his injury, both to the WSIB and to his health care professionals, in a manner that did not accord with fact, or in a manner that gave the wrong impression. In other words, the prosecution contends that the defendant had portrayed himself as unable to engage in certain physical activities due to increased and consistent pain in his elbows when, in reality, he was capable of engaging in vigorous physical activity which included lifting, gripping and pushing or pulling in excess of his documented restrictions over an extended period of time. As a result, the prosecution submits that the actus reus of the s. 149(1) offence has been made out. The prosecutions also submits that the effect of the defendant engaging in the actus reus of this offence was that the defendant continued to obtain loss of earnings, health care, and return-to-work services benefits from the WSIB to which the defendant was not entitled.
55As for the mens rea element of the s. 149(1) offence, the prosecution contends that this wrongful conduct by the defendant depletes the compensation fund and deprives eligible injured workers from these funds. But more importantly, the prosecution argues that proof of the mens rea for the offence does not require proof that the defendant had been aware in law that he was not eligible for benefits because of the defendant’s ability to engage in the activities captured on the February 22, 2024, surveillance video. Furthermore, the prosecution submits that proof of the mens rea for the s. 149(1) offence only requires proof that the defendant knowingly misrepresented his functional abilities to the WSIB with respect to his claim for benefits in order to affect his claim for benefits, not that he had been aware of the law around the eligibility for WSIB benefits.
56In addition, the prosecution submits that in considering the evidence as a whole, both direct and circumstantial, the sole reasonable inference to be drawn is that during the material times, the defendant had knowingly withheld from the WSIB that he was capable of lifting, gripping, and pushing or pulling at a much higher level than had been documented in his medical reports in order to continue his claim for benefits. And, even though there is no direct evidence of the defendant’s motives, the prosecution contends that there is a reasonable inference that the defendant did so in order to continue receiving access to loss of earnings, health care, and return- to-work services benefits with the WSIB. Moreover, the prosecution submits that when contrasting the defendant’s perpetuation of the impression that he had continued to give to his medical professionals and the WSIB staff, that his pain was so bad that he was unable to return to work throughout January and February of 2024, as well as the defendant’s claim of a lack of improvement to his functional ability to be able to return to work, with the February 22, 2024 video surveillance that showed the defendant’s level of functional ability had greatly exceeded his health professionals’ limitations and restrictions by the defendant engaging in driving a motor vehicle continuously for more than 10 kms. and carrying and lifting objects weighing up to 40 lbs., is proof beyond a reasonable doubt that the defendant had knowledge that there had been a significant change or improvement in his functional abilities. And, by the defendant continuing to represent to the WSIB and to his health professionals that there had been no improvement to his functional ability, the prosecution contends that the defendant knew that these representations to the WSIB had been false or misleading. Moreover, in Dr. Krievens’ expert report (see Exhibit #21), Dr. Krievens had noted on p. 9 that the defendant had continued with his claim of being unable to return to work because of the pain he had been experiencing well into the summer of 2024, which had been long after the activities the defendant had engaged in on the February 22, 2024 surveillance video.
57Furthermore, the prosecution submits that the defendant had testified that because he had experienced significant pain after engaging in these activities captured on the February 22, 2024, surveillance video, the defendant did not believe that he had to report those activities to the WSIB; however, the prosecution contends that it is not the defendant’s job to make determinations on entitlement and it is also not a defence to the charge. In addition, the prosecution submits that the willful or voluntary nature of the defendant’s misrepresentation about his level of functional ability to the WSIB can likewise be inferred from the same evidence. Moreover, the prosecution submits that the defendant had been presented with numerous opportunities to be truthful about his functional abilities, especially in conversations with WSIB Case Manager Kazi on February 23, 2024, or during his Return-to-Work Plan meeting with WSIB Return-To-Work Specialist Kerswell on February 28, 2024, just days after the activities the defendant had engaged in on February 22, 2024, yet, the defendant had failed to do so on either occasion. Additionally, the prosecution submits that it is irrelevant to the inquiry under s. 149(1), whether or not the defendant had understood or had been informed of his obligation to report a material change in his functional abilities, since it is not a requisite element of the offence under s. 149(1) that the defendant knew of the requirement or obligation to report a material change in his circumstances to the WSIB. Rather, the prosecution argues that s. 149(1) focuses specifically on whether the defendant had knowingly misrepresented something to the WSIB, namely, the defendant’s functional abilities. Ergo, the prosecution argues that it is also immaterial whether the defendant understands when it is appropriate to tell the WSIB that there had been a change in his functional abilities or whether the defendant believes that there had been a change.
58And, in respect to the interpreter and the defendant’s comprehension of the English language issue, the prosecution contends that any apparent concerns with the defendant’s level of comprehension in the English language is inconsequential. But more importantly, the prosecution contends that the evidence adduced at trial leads to the reasonable inference that the defendant’s comprehension of the English language is at a much higher level that he admits to the court. In addition, the prosecution submits that there is no requirement for the defendant to understand anything other than that misrepresenting his functional abilities could result in prolonged entitlement to benefits. Furthermore, the prosecution contends that it had been evident that the defendant had been aware of this by at least February 28, 2024, when the defendant had understood that he would no longer be entitled to benefits due to his non-occupational finger injury, yet the defendant had continued to maintain that his condition was either worsening or not changing, thereby maintaining his entitlement to benefits.
(B) Defence Submissions
59On the other hand, the defence contends that the defendant should be acquitted of the charge under s. 149(1) of the W.S.I.A, 1997, since the prosecution has failed to prove beyond a reasonable doubt that the defendant had knowingly made a false or misleading representation to the WSIB, considering that the February 22, 2024 surveillance video showing that the defendant being engaged in physical activities on a single occasion does not establish mens rea for the offence -- specifically that the defendant had intentionally misrepresented his condition to the WSIB with the subjective purpose of affecting his claim for benefits.
60The defence further argues that the prosecution has failed to prove that the defendant has committed the actus reus of the offence beyond a reasonable doubt, as the prosecution has failed to establish that the defendant had made any false statements to the WSIB. Specifically, the defence argues that the prosecution must prove that the defendant made an actual false statement or representation to the WSIB and not merely an alleged omission by the defendant to report activities. On the other hand, the defence contends that the medical reports pertaining to the defendant accurately reflected his subjective experience of his condition based on assessments by licensed medical professionals. In addition, the defence submits that the defendant had consistently reported pain in both elbows and functional limitations to his health professionals. Moreover, the defence submits that the fact that the defendant had attempted physical activities on one occasion does not render his previous or subsequent medical reports false.
61In addition, the defence submits that the prosecution has not proven beyond a reasonable doubt that the defendant had understood the nature of WSIB’s reporting obligations that had been imposed upon him; that the WSIB had not clearly communicated those legal obligations in a manner that the defendant could understand; that any actions the defendant had engaged in had in law constituted a “statement” within the meaning of s. 149(1); and that the defendant had knowingly misled the WSIB.
62Moreover, the defence argues that a person's subjective experience of pain and functional limitation cannot be deemed "false" simply because they had engaged in activities on a single day and because pain conditions are variable for different people, and medical science recognizes that patients may have "good days" and "bad days." However, in respect to this particular defence supposition, no expert medical evidence had been adduced at trial about variable pain conditions, so the court cannot take judicial notice of that medical postulation contended by the defence. Ergo, this particular defence argument is only conjecture and has no merit.
63Furthermore, the defence also argues that when taken at its highest, the February 22, 2024, surveillance video of the defendant carrying and lifting objects weighing up to 40 lbs. for 15 minutes fails to show that the defendant had understood that the activity he had been engaged in had required reporting; or that it shows that the defendant had believed that lifting items on one occasion had amounted to “work activity” or that his actions had contradicted his restrictions or limitations in a way that he understood to be relevant to his legal obligation to report such activity to the WSIB, considering that the defendant had testified that the February 22, 2024, surveillance video of the defendant lifting desks and cabinets for Double AA Woodworking Ltd. was an isolated incident where he was helping his friend move furniture. Instead, the defence contends that the defendant had only wanted to test his level of functional abilities to see if he could return to work, that the defendant had experienced significant pain afterward which had confirmed the defendant’s functional limitations, and that the defendant did not view this as an improvement in his level of functional ability because of the pain the defendant had experienced after engaging in that activity that had not been sanctioned by his health professionals.
64The defence further submits that the February 22, 2024, surveillance video only shows conduct and does not show the defendant’s comprehension nor his intent, nor does it show dishonesty, nor is the surveillance video conclusive evidence that can be used to prove intent. In addition, the defence further submits that the defendant’s actions and involvement with Double AA Woodworking Ltd. that had been captured on the video surveillance, as the defendant had testified to, can be explained away as cultural norms of assisting friends without pay, the lack of awareness of reporting requirements, misunderstanding WSIB's expectations, and episodic improvement of pain symptoms. Furthermore, the defence submits that the Medical Reports from the defendant’s family physician and physiotherapists had been accurate reflections of his condition and more reliable than the video of one isolated incident that captured the defendant lifting and carrying desks and cabinets on February 22, 2024.
65In addition, the defence submits that one isolated incident does not establish a pattern of misrepresentation. Also, the defence argues that the evidence adduced at trial demonstrates that the defendant had genuinely believed that his condition had not improved because the defendant had experienced significant pain after the defendant’s February 22, 2024 activities that had been captured on surveillance video; that the defendant had been simply attempting to test his level of functional abilities to determine if he could return to work; that the defendant did not understand that a single incident of activity that had resulted in pain needed to be reported to the WSIB; and that the defendant had no motive to deceive because the defendant had wanted to return to work.
66Furthermore, the defence submits that Arabic is the defendant’s preferred and functional language, and that the defendant did not understand the English-based forms he signed and that the defendant had never received an interpreter during WSIB communications, that the WSIB had failed to verify the defendant’s comprehension, and that instructions regarding “material change” were never explained to the defendant in practical terms.
6. ISSUES
67The following are issues that have arisen at trial, which need to be resolved:
(a) Has the prosecution proven beyond a reasonable doubt that the defendant had committed the actus reus of the s. 149(1) offence?
(b) Has the prosecution proven beyond a reasonable doubt that the defendant had the requisite mens rea for the s. 149(1) offence?
(c) What elements or circumstances does the prosecution have to prove beyond a reasonable doubt in order to obtain a conviction for the s. 149(1) offence?
(d) Does the prosecution have to prove beyond a reasonable doubt that the WSIB had advised the defendant about informing the WSIB about any change or improvement in his level of functional ability that would affect his entitlement to benefits, as well as the consequences for not informing the WSIB about a change or improvement in his level of functional ability?
(e) Does the prosecution have to prove beyond a reasonable doubt that the defendant had been aware of or that he knew about his legal obligation to inform the WSIB about any change or improvement in his level of functional ability that would affect his entitlement to benefits?
(f) Does the W.S.I.A., 1997 provide for a right to an interpreter in dealings with the WSIB?
(g) Does the defendant have a constitutional right to an interpreter for non-court related matters in his dealings and claim for benefits with the WSIB?
(h) Did the defendant unequivocally request an Arabic interpreter in his claim for WSIB benefits or in his conversations with WSIB Case Manager Sabiha Kazi, Return-To-Work Specialist Melissa Kerswell, or with his physicians and physiotherapists?
(i) Is there evidence that the defendant’s ability in the English language had been at such a deficient or poor level that had affected his communications with the WSIB Case Manager, with the WSIB Return-To-Work Specialist, and with his physicians and physiotherapists that would effectively negate either the actus reus of the offence or the mental fault element of the s. 149(1) offence being committed by the defendant?
(j) Was the defendant’s ability to communicate in the English language so deficient that the WSIB ought to have provided an Arabic language interpreter to the defendant in respect to all communication and dealings with the defendant’s claim for WSIB benefits?
(k) Is there an air of realty to the defendant’s mistake of fact contention that the defendant’s had an honest and mistaken belief that he did not have to inform the WSIB about the change and improvement in his level of functional ability and impairment that would affect his entitlement to benefits by engaging in the physical activity of lifting and carrying objects weighing between 6 to 40 lbs. for about 15 minutes without taking a rest break on February 22, 2024, since the defendant had only been doing an “one-time” test of his level of functional ability on February 22, 2024, to determine if he could be able to return to work, and because he had still experienced significant pain after that test of his level of functional and physical abilities and that his level of functional ability had not improved to be able to return to work?
(l) Does the medical expert have to personally examine the defendant before his expert opinion would carry any weight?
7. ANALYSIS
68To reiterate, the defendant is charged with contravening s. 149(1) of the W.S.I.A., 1997, which states:
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.
(A) Purpose of s. 149(1) of the W.S.I.A., 1997
69The Workplace Safety and Insurance Board (WSIB) is an agency of the government of Ontario. The WSIB administers and enforces the workplace safety and insurance system in accordance with the W.S.I.A., 1997. The WSIB is completely funded by employer premiums and the income it earns on its investments. The objective of the W.S.I.A., 1997 is set out in s. 1 of that Act and states that the legislation’s purpose is to promote health and safety in workplaces, facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease, facilitate the re-entry into the labour market of workers and spouses of deceased workers, and provide compensation and other benefits to workers and to the survivors of deceased workers, in a financially responsible and accountable manner:
Purpose
1 The purpose of this Act is to accomplish the following in a financially responsible and accountable manner:
To promote health and safety in workplaces.
To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease.
To facilitate the re-entry into the labour market of workers and spouses of deceased workers.
To provide compensation and other benefits to workers and to the survivors of deceased workers.
70Ergo, in Ontario, the workplace insurance system provides benefits and services to many workers who have been injured at work or who have diseases related to work. This workplace insurance is a "no-fault" system based on collective employer liability, which means workers can get workplace safety and insurance benefits without proving that their employer was to blame for their injury or disease. Workers must only prove that the injury or disease was work-related and in return, employers get protection from being sued for work-related injuries by paying into an accident insurance fund.
71In addition, the purpose of s. 149 of the W.S.I.A., 1997, had also been considered by the Court of Appeal for Ontario, at paras. 2 to 4 and 10 to 14, in Curtis v. Ontario (Workplace Safety and Insurance Board), 2018 ONCA 441, [2018] O.J. No. 2483, in which they had held that s. 149 and other provisions are intended to combat fraud and other abuses of the system, such as workers' receipt of benefits to which they are not entitled to, as well as noting that workers also have positive obligations to report to the WSIB when there are changes in circumstances that affect their rights to benefits [emphasis is mine below]:
The WSIB is an independent agency established under the WSIA. It administers a plan of no-fault insurance for Ontario workplaces. Its statutory mandate includes promotion of workplace health and safety, helping injured workers return to work, and provision of compensation and other benefits for injured workers and workers afflicted with occupational diseases. It also provides access to industry specific information about workplace fatalities, injuries and illnesses.
Both employers and employees can report an injury or illness to the WSIB. It then decides whether the injury or illness is work-related, gathers relevant information, weighs evidence, and makes a decision in respect of a claimant's entitlement. Although decisions of the WSIB are meant to be final, both the employer and employee have a right to appeal a decision made in a respect of a claim. Decisions may be appealed to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT") after the WSIB's internal appeal mechanism has been exhausted.
A claimant has no right of appeal from a decision of the WSIAT. Any further appeal must be made by application for judicial review.
The use of the word "wilfully" in the statutory text is important and signifies a legislative intention to create a true criminal offence "in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence": R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at para. 60. The term "wilfully" is a term of art usually used to express a mens rea requirement that "stresses intention in relation to the achievement of a purpose": R. v. Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941 at para. 13.
That interpretation is supported by the use of "in connection with his or her entitlement to benefits" to define the scope of a "material" change. The use of this phrase suggests a consequence flowing from the change, in this context, receipt of benefits under the WSIA to which a worker is no longer entitled.
Legislative purpose
This interpretation is also supported by Legislative Debates describing this and other provisions as intended to combat fraud, that is to say, workers' receipt of benefits to which they are not entitled.
When the Bill creating this offence was introduced, the Minister of Labour indicated:
[T]his board faces fraud and other abuses of the system by employers, by suppliers, by workers and by others...The amendments also include measures to stem the loss of revenue owed to the WCB, strengthen anti-fraud measures and eliminate abuses of the system... The amendments will make it an offence under the act to obtain benefits or to receive compensation by deliberately providing false or misleading information.
Ontario, Legislative Assembly, Official Report of Debates (Hansard), 36th Parl., 1st Sess., (14 November 1995), at 1540 and 1550 (Hon. Elizabeth Witmer).
The amendments were referred to the Standing Committee on Resources Development for consideration. In introducing the proposed amendments to the Committee, the Honourable John R. Baird, standing-in for the Minister of Labour, discussed the new offences and penalties section. He referred specifically to the new provisions which placed "positive obligations on workers and employers to report to the board when there are changes in circumstances that, in the case of workers, affect their rights to benefits". He described the Bill as "the tools [that the Board] needs to go after all forms of fraud." He referred to failing to report a change in circumstance as "stealing money from the WCB." The amendments proceeded unchanged to third reading and the Bill received Royal Assent on December 14, 1995: see Ontario, Legislative Assembly, Standing Committee of Resources Development, Consideration of Bill 15, 36th Parl., 1st Sess., (27 November 1995 and 11 December 1995) (Mr. John R. Baird).
(B) The Offence Contained In S. 149(1) Is A Mens Rea Offence
72Under the W.S.I.A., 1997, benefits are provided to eligible workers without requiring them to prove fault in a work-related accident or illness. The injury or illness, however, must have resulted from a workplace in Ontario. This no-fault insurance scheme provides benefits for injured or ill workers where for approved claims, the WSIB provides wage-loss benefits, medical coverage, and support to help workers return back to work.
73The offence set out in s. 149(1) contains the word “knowingly” to describe the mental fault element. As Dickson J. held in R. v. Sault Ste. Marie (1978), 1978 CanLII 11 (SCC), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353 (S.C.C.), where such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence, the offence would fall in the first category of offences of “mens rea offences”. More importantly, Dickson J. held that mens rea offences, which consist of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence [emphasis is mine below]:
I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:
Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.
Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
74Ergo, the prosecution has the onus to prove beyond a reasonable doubt both the actus reus and the requisite mens rea elements for the s. 149(1) offence, while the defendant has no legal obligation or onus to prove any due diligence defence for this regulatory offence, as it is not classified as a strict liability offence. If the prosecution proves that the defendant has committed the prohibited act and the fault element for the s. 149(1) offence beyond a reasonable doubt, and there is no defence, then the defendant will be found guilty of committing the offence.
75Moreover, the starting point in deciding whether the prosecution has met its burden in proving that the defendant had committed the actus reus and mens rea of the s. 149(1) offence beyond a reasonable doubt is to first decide whether the defendant’s contention on the lack of proficiency in the English language and the failure of the WSIB to provide an Arabic interpreter for the defendant’s dealings and conversations with WSIB staff and his health professionals is a convincing or persuasive argument that would negate the actus reus and the mens rea of the s. 149(1) offence being committed by the defendant. If the evidence does show that the defendant’s proficiency or comprehension of the English language had been so lacking or insufficient to properly communicate in the English language, so that the WSIB ought to have provided the defendant with an Arabic interpreter for his dealings with the WSIB and with his health professionals, then the communication with WSIB staff and the defendant’s health professionals may not be reliable or accurate, and could therefore, effectively negate the actus reus and the mens rea elements for the s. 149(1) offence being committed by the defendant, and would as a consequence create reasonable doubt for the defendant’s guilt. On the other hand, if the evidence does show that the defendant had a proficiency in the English language to be able to properly communicate with WSIB staff and his health professionals, then the defence argument based on the defendant’s lack of proficiency in the English language will not succeed in negating the actus reus and the mens rea elements for the s. 149(1) offence being committed by the defendant, nor will it create reasonable doubt about the defendant committing the offence.
(C) To Obtain A Conviction For The Offence Under S. 149(1), What Does The Prosecution Have To Prove Beyond A Reasonable Doubt?
76In Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing, the following definitions are provided at p. 602 for “false representation”, pp. 602-603 for “false statement”, at p. 1000 for “misleading”, and at p. 1001 for “misrepresentation” [emphasis is mine below]:
False representation. For purposes of the common-law tort of fraudulent misrepresentation, such may be either an affirmative misrepresentation or a failure to disclose a material fact when a duty to disclose that fact has arisen. Rothenberg v. Aero Mayflower Transit Co., Inc., D.C.D.C., 495 F.Supp. 399, 406. To maintain an action for damages for "false representation," the plaintiff, in substance, must allege and must prove by a preponderance of the evidence the following elements: (1) that representation was made; (2) that it was false; (3) that the defendant knew it was false, or else made it without knowledge as a positive statement of known fact; (4) that the plaintiff believed the representation to be true; (5) that the plaintiff relied on and acted upon the representation; (6) that the plaintiff was thereby injured; and (7) the amount of the damages. See also Deceit; False statement; Fraud; Material fact; Reliance.
False statement. Statement knowingly false, or made recklessly without honest belief in its truth, and with purpose to mislead or deceive. Third Nat. Bank v. Schatten, C.C.A.Tenn., 81 F.2d 538, 540. An incorrect statement made or acquiesced in with knowledge of incorrectness or with reckless indifference to actual facts and with no reasonable ground to believe it correct. International Shoe Co. v. Lewine, C.C.A.Miss., 68 F.2d 517, 518. Such are more than erroneous or untrue and import intention to deceive. Schapiro v. Tweedie Footwear Corporation, C.C.A.Pa., 131 F.2d 876, 878. Under statutory provision making it unlawful for officer or director of corporation to make any false statement in regard to corporation's financial condition, the phrase means something more than merely untrue or erroneous, but implies that statement is designedly untrue and deceitful, and made with intention to deceive person to whom false statement is made or exhibited. The federal criminal statute governing false statements applies to three distinct offenses: falsifying, concealing, or covering up a material fact by any trick, scheme or device; making false, fictitious, or fraudulent statements or representations; and making or using any false documents or writing. 18 U.S.C.A. § 1001. See also Deceit; False representation; Fraud; Material fact; Perjury; Reliance.
Misleading. Delusive; calculated to lead astray or to lead into error. A Judge's instructions which are of such a nature as to be misunderstood by the jury, or to give them a wrong impression, are said to be "misleading." See also Deception; Deceit; Misrepresentation.
Misrepresentation. Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead. As amounting to actual legal fraud consists of material representation of presently existing or past fact, made with knowledge of its falsity and with intention that other party rely thereon, resulting in reliance by that party to his detriment. Jewish Center of Sussex County v. Whale, 86 N.J. 619, 432 A.2d 521, 524. In a limited sense, an intentional false statement
respecting a matter of fact, made by one of the parties to a contract, which is material to the contract and influential in producing it. A "misrepresentation," which justifies the rescission of a contract, is a false statement of a substantive fact, or any conduct which leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead. See also Deceit; Deception; False; Fraud; Material fact; Reliance. Insurance law. A statement of something as a fact which is untrue and material to the risk, and which assured states knowing it to be untrue and with intent to deceive, or which insured states positively as true, not knowing it to be true, and which has a tendency to mislead. One that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance. See also Material fact.
77Furthermore, the following are definitions for “false statement”, “false representation” and “misrepresentation” that are found in the online edition of the Merriam-Webster.com Legal Dictionary, online: merriam-webster.com website <https://www.merriam-webster.com/legal>:
false statement noun
: a statement that is known or believed by its maker to be incorrect or untrue and is made especially with intent to deceive or mislead
| submitted a false statement to obtain the loan
also: the federal crime of concealing a material fact, making a false statement, or using documents known to be falsified
false representation noun
: an untrue or incorrect representation regarding a material fact that is made with knowledge or belief of its inaccuracy
misrepresentation noun
mis·rep·re·sen·ta·tion mis-ˌre-pri-ˌzen-ˈtā-shən, -zən-
: an intentionally or sometimes negligently false representation made verbally, by conduct, or sometimes by nondisclosure or concealment and often for the purpose of deceiving, defrauding, or causing another to rely on it detrimentally
also : an act or instance of making such a representation
78In addition, the definition for the term, “misleading” is set out in the online edition of the Cambridge Dictionary, online: disctionary.cambridge.org website <https://dictionary.cambridge.org/dictionary/english/misleading>:
Misleading
Adjective
uk
causing someone to believe something that is not true:
misleading information/statements
Adverts must not create a misleading impression.
Synonym
79Also, the definition and meaning for the term “fraudulent misrepresentation” is set out online in the LexisNexis Legal Glossary, online: LexisNexis.co.uk website <https://www.lexisnexis.co.uk/legal/glossary/fraudulent-misrepresentation#:~:text=A%20knowingly%20false%20assertion%20intended,knows%20the%20statement%20is%20false>:
What does Fraudulent misrepresentation mean?
A knowingly false assertion intended to mislead another and make them agree to a contract because of that misrepresentation.
Fraudulent misrepresentation is a misrepresentation made where the representor knows the statement is false. The required elements for fraudulent misrepresentation are: there must have been a statement, the statement must have been unambiguous, the statement must have been false, the statement must be one ‘of fact’, the statement must have been addressed to the party misled, and the statement must have induced the claimant to enter into the contract. The representation need not have been the only inducement to enter into the contract.
80Ergo, in order for the prosecution to obtain a conviction under s. 149(1) of the W.S.I.A., 1997, according to the language of s. 149(1), the legislative purpose, and the context of this offence, the prosecution is required to prove the following:
The accused made a representation or statement concerning his functional ability between January 18, 2024 to February 28, 2024, to the WSIB or to his health professionals that had concerned the defendant’s claim for benefits under the insurance plan.
The representation or statement concerning his functional ability made by the defendant to the WSIB or to his health professionals between January 18, 2024 to February 28, 2024, that had concerned the defendant’s claim for benefits under the insurance plan were false or misleading.
The defendant knew or had a subjective awareness that the representation or statement concerning his functional ability made by the defendant to the WSIB or to his health professionals between January 18, 2024 to February 28, 2024, that had concerned the defendant’s claim for benefits under the insurance plan were false or misleading.
The defendant knew or had a subjective awareness that the representation or statement concerning his functional ability made by the defendant to the WSIB or to his health professionals between January 18, 2024 to February 28, 2024, that had concerned the defendant’s claim for benefits under the insurance plan could affect his entitlement to WSIB benefits.
(D) WAS THE DEFENDANT’S PROFICIENCY OR ABILITY IN THE ENGLISH LANGUAGE AT SUCH A POOR LEVEL THAT HIS COMMUNICATIONS WITH THE WSIB CASE MANAGER, RETURN-TO-WORK SPECIALIST, PHYSICIANS AND PHYSIOTHERAPISTS WOULD IN EFFECT NEGATE THE ACTUS REUS OF THE OFFENCE OR THE MENTAL FAULT ELEMENT OF THE S. 149(1) OFFENCE BEING COMMITTED BY THE DEFENDANT?
81The defence contends that the defendant is not very proficient in the English language and needed the services of an Arabic interpreter. And, because the WSIB had failed to provide him with an Arabic interpreter for his dealings and conversations with the WSIB staff and for his assessments with his physician and physiotherapist, even though the defendant had testified that he had requested an interpreter on several occasions when conversing with WSIB staff, that the information about the defendant’s workplace injury had not been properly documented and has caused the WSIB to erroneously conclude that the defendant had “knowingly made a false or misleading statement or representation to the WSIB in connection to a claim for benefits”.
82Hence, for the present regulatory prosecution under the W.S.I.A., 1997, in which WSIB staff had not found it necessary to provide the defendant with an interpreter in the Arabic language to aid in his communications and dealings with the WSIB or with his health professionals in a claim for workplace injury benefits, despite the defendant explicitly stating in his claim for work-injury benefits in the Form 6 (Worker’s Report Of Injury Or Illness) document provided to the WSIB, that his preferred language was Arabic, the following issues have arisen in respect to the defendant’s communications with the WSIB staff and with his health professionals:
(1) Did the injured worker unequivocally request an interpreter to be provided by the WSIB?
(2) Were the WSIB Case Manager’s and WSIB Return-To-Work Specialist’s testimony credible that the injured worker’s communication with them in the English language did not raise any concerns to them that the injured worker had needed an Arabic language interpreter?
(3) Whether the defendant in not having the services of an Arabic interpreter in his communications and dealings with the WSIB and his health professionals would effectively negate the actus reus or mens rea for the s. 149(1) offence being committed by the defendant?
(1) What Are The Language Rights Of The Defendant?
83Under the Charter, Federal legislation, and Provincial legislation, an individual does have language protected rights.
(a) The Right To An Interpreter for Court-Related Matters
(i) [S. 14](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and Freedoms
84The right to an interpreter for criminal and quasi-criminal trials or proceedings is a constitutional right entrenched in s. 14 of the Charter of Rights and Freedoms. Under s. 14 of the Charter of Rights and Freedoms, a party or witness in any proceeding has a constitutional right to an interpreter in any proceedings where they do not understand or speak the language in which the proceedings are conducted:
- A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
85Before the Charter was enacted in 1982, the right to an interpreter in a trial existed under the common law, because it was believed to be necessary for natural justice. That right was then incorporated into the Canadian Bill of Rights in 1960.
86In R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, S.C.J. No. 16, at paras. 35 to 50, the Supreme Court of Canada held that the right to the assistance of an interpreter for court proceedings is also based on Canada's multiculturalism as recognized in s. 27 of the Charter. Furthermore, the Supreme Court of Canada also noted that the right to an interpreter's assistance may be claimed not only in the context of criminal matters, but also in civil and administrative proceedings. Moreover, the Supreme Court held that the purpose of the right to interpreter assistance is to create a level and fair playing field and not to provide some individuals with more rights than others. In addition, the Supreme Court indicated that as a general rule, courts should appoint an interpreter when either of the following occurs: (1) it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing himself or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or (2) an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified [emphasis is mine below]:
It is clear that the right to the assistance of an interpreter of an accused who cannot communicate or be understood for language reasons is based on the fundamental notion that no person should be subject to a Kafkaesque trial which may result in loss of liberty. An accused has the right to know in full detail, and contemporaneously, what is taking place in the proceedings which will decide his or her fate. This is basic fairness. Even if a trial is objectively a model of fairness, if an accused operating under a language handicap is not given full and contemporaneous interpretation of the proceedings, he or she will not be able to assess this for him or herself. The very legitimacy of the justice system in the eyes of those who are subject to it is dependent on their being able to comprehend and communicate in the language in which the proceedings are taking place.
(iii) Relationship with Other Charter Provisions
Support for an expansive interpretation of s. 14 may also be found within the Charter itself. This Court has already indicated that provisions of the Charter are not to be read in isolation, but rather interpreted in light of one another: e.g., R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, per Wilson and La Forest JJ., Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, per Lamer J. (as he then was), and Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357. It has already been noted by this Court that s. 7 of the Charter is a general expression of the legal rights contained in ss. 8 to 14 of the Charter: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, per Lamer J. (as he then was), at p. 502. Not surprisingly, therefore, s. 14 bears a close relationship to s. 7 and the other "legal rights" guaranteed under the Charter. Indeed, I would argue that the right to interpreter assistance under s. 14 is a means of ensuring that criminal proceedings comply with the constitutional guarantee of a fair and public hearing found in s. 11(d) of the Charter. At the same time, the force of s. 14 can be understood in part by reference not only to the right to make full answer and defence, but also to the right to have full disclosure of the case which has to be answered prior to making one's defence, both rights which are protected under ss. 7 and 11 of the Charter. Indeed, the close connection between s. 14 and these other Charter guarantees suggests that the right to interpreter assistance in the criminal context should be considered a "principle of fundamental justice" within the meaning of s. 7 of the Charter.
Sections 15 (equality rights), 25 (aboriginal rights) and 27 (multicultural heritage) of the Charter also speak to the importance of the right to interpreter assistance in Canadian society. Section 27, which mandates that the Charter be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, is particularly germane. In so far as a multicultural heritage is necessarily a multilingual one, it follows that a multicultural society can only be preserved and fostered if those who speak languages other than English and French are given real and substantive access to the criminal justice system. Just as s. 27 has already been held to be relevant to the interpretation of freedom of religion under s. 2(a) of the Charter (R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, at p. 752, and R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263), so too should it be a factor when considering how to define and apply s. 14 of the Charter.
(iv) Conclusions on the Purposes Served by Section 14
The right of an accused person who does not understand or speak the language of the proceedings to obtain the assistance of an interpreter serves several important purposes. First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society's claim to be multicultural, expressed in part through s. 27 of the Charter. The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.
Importantly, the underlying principle behind all of the interests protected by the right to interpreter assistance under s. 14 is that of linguistic understanding. The centrality of this principle is evident not only from the general jurisprudence dealing with interpreters, but also more directly from the language of s. 14 itself, which refers to "not understand[ing] or speak[ing] the language in which the proceedings are conducted". The level of understanding protected by s. 14 will, therefore, necessarily be high. Indeed, it has been suggested that a party must have the same basic opportunity to understand and be understood as if he or she were conversant in the language of the court. For example, in the immigration case, Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.), Stone J.A. stated at p. 392:
In my opinion, the appellant was entitled, through the interpreter, to tell the story of his fear in his own language as well he might have done had he been able to communicate to the Board in the English language. Natural justice demanded no less. [Emphasis added.]
Similarly, in United States v. Joshi, 896 F.2d 1303 (1990), the U.S. Court of Appeals, 11th Circuit, held that the "general standard for the adequate translation of trial proceedings requires continuous word for word translation of everything relating to the trial a defendant conversant in English would be privy to hear" (p. 1309) (emphasis added). This view is echoed by Steele, who writes in "Court Interpreters in Canadian Criminal Law", supra, at p. 240, that,
[a]n interpretation of testimony should be as good as -- no better and no worse than -- the testimony that the applicant would give if the source language were the language of the court, due allowance being given for the circumstance that the testimony is, in fact, being interpreted. [Emphasis added.]
At the same time, however, the principle of linguistic understanding which underpins the right to interpreter assistance should not be elevated to the point where those with difficulty communicating in or comprehending the language of the proceedings, be it English or French, are given or seen to be given unfair advantages over those who are fluent in the court's language. Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others.
(b) Framework for Determining a Violation of Section 14
In determining the scope of the right to interpreter assistance under s. 14 of the Charter, care must be taken in defining what constitutes an appropriate standard of interpretation, what the considerations should be in deciding whether a particular departure from this standard is constitutionally permissible, where the burden of persuasion (and, therefore, risk of non-persuasion) lies, whether the right can be waived, and what the remedy for a violation of the right should be. The framework of analysis which I propose be applied to determine whether there has in fact been a breach of s. 14 is, in short, as follows.
First, it must be clear that the accused was actually in need of interpreter assistance -- i.e., that he or she did not understand or speak the language being used in court. Although the ultimate burden of proof in establishing the required level of need rests, of course, on the party asserting that he or she has suffered a violation of his or her s. 14 rights, it is important to appreciate that the right to interpreter assistance is not one which must necessarily have been invoked or asserted in order to be enjoyed. As part of their control over their own proceedings, courts have an independent responsibility to ensure that those who are not conversant in the language being used in court understand and are understood. Accordingly, unless the issue of interpretation is only being raised for the first time on appeal and/or there is some question as to whether the right is being asserted in bad faith, establishing "need" will not normally be an onerous step.
Second, the claimant of the right must show, assuming it is not a case of a complete denial of an interpreter but one involving some alleged deficiency in the interpretation actually provided, that there has been a departure from the basic, constitutionally guaranteed standard of interpretation. For the purposes of this appeal, I define this standard as one of continuity, precision, impartiality, competency and contemporaneousness.
Third, the claimant must establish that the alleged lapse in interpretation occurred in the course of the proceedings themselves when a vital interest of the accused was involved -- i.e., while the case was being advanced -- rather than at some point or stage which was extrinsic or collateral to the advancement of the case.
The onus with respect to these three steps for establishing a breach of s. 14 of the Charter falls on the party asserting the violation and the standard of proof is one of balance of probabilities. Once a court is satisfied that the first three requirements have been met, a violation of s. 14 will have been made out unless the Crown is able to prove, again on a balance of probabilities, that there was a valid and effective waiver of the right which accounts for the lapse in (or lack of) interpretation shown to have occurred.
It is to describing in greater detail the various components of this proposed framework of analysis for s. 14 of the Charter that I now turn.
(i) The Need for an Interpreter
The first step in the analysis as to whether a breach of s. 14 of the Charter has in fact occurred requires consideration of the need for interpreter assistance. That is, the claimant of the right must demonstrate that he or she satisfies (or satisfied) the conditions precedent to entitlement to the right. Section 14 of the Charter states clearly that, to benefit from the right, an accused must "not understand or speak the language in which the proceedings are conducted".
While the right to interpreter assistance is not an automatic or absolute one, it stands to reason, particularly with the elevation of the right to the level of a constitutional norm, that courts should be generous and open-minded when assessing an accused's need for an interpreter. As a general rule, courts should appoint an interpreter when either of the following occurs:
(1) it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him- or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or
(2) an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified.
Importantly, neither the language of s. 14 of the Charter nor the legal-historical underpinnings of the right require courts to inform all accused appearing before them of the existence of the right to interpreter assistance. Similarly, courts are not obliged to inquire, as a matter of course, into every accused's capacity to understand the language used in the proceedings. At the same time, however, there is no absolute requirement on an accused that the right be formally asserted or invoked as a pre-condition to enjoying it. This is because courts have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justice and, therefore, to protect an accused's right to interpreter assistance, irrespective of whether the right has actually been formally asserted.
Just as a court should conduct a hearing into an accused's mental capacity if it appears that the accused may not be competent to participate fully in his or her own defence, or likewise should decline to accept a guilty plea if not satisfied that an accused understands the nature of the charge and appreciates what it is he or she is doing, so too should a court conduct, on its own motion, an inquiry into the need for an interpreter when it appears that an accused is having language difficulties. As I suggested above, the overriding consideration is that of understanding. Failure to conduct an inquiry where there is some positive indication that the accused may not understand or cannot be understood for reasons related to language, and to appoint an interpreter where one may prove helpful, could result in a miscarriage of justice and the ordering of a new trial.
However, it should be borne in mind by defence counsel that the safer course will always be to request an interpreter when one is required, rather than to rely on a court to appoint one entirely on its own motion. Indeed, as officers of the court, there is an obligation on both Crown and defence counsel to draw a court's attention to the need for an interpreter where counsel become aware that such a need exists. While courts must be alert to signs which suggest that an accused may have language difficulties, they are not nor can they be expected to be mind readers. Where there are no outward indications which point to a lack of understanding on the accused's part and where the right has not been invoked by the accused or by counsel (in the case of represented accused), these may be factors which are weighed against the accused if, after sitting quietly throughout the trial, the issue of interpretation is suddenly raised for the first time on appeal. The cases of R. v. Tsang (1985), 1985 CanLII 667 (BC CA), 27 C.C.C. (3d) 365 (B.C.C.A.), and R. v. Tabrizi, [1992] O.J. No. 1383 (Ont. Ct. (Gen. Div.)) are illustrative of this point.
87Furthermore, in R. v. Chen (2025), 176 O.R. (3d) 561, 2025 ONCA 168 (Ont. C.A.), at paras. 1, 57 to 68, 75 to 76, and 85 to 93, the Ontario Court of Appeal considered s.14 of the Charter and noted that to establish a breach of s. 14, it must first be clear that the accused was in need of interpreter assistance, in that the accused did not understand or speak the language used in court. More importantly, the Court of Appeal indicated that courts have an independent responsibility to ensure the accused understands the language and is understood and to ensure that their proceedings are fair and in accordance with the principles of natural justice, which requires courts protect an accused’s right to interpreter assistance, irrespective of whether the right has been formally asserted. Also, the Court of Appeal reiterated that a court is not to engage in speculation as to whether the lack of or lapse in interpretation made any difference to the outcome of the case and that courts must not be too quick to draw adverse inferences where the accused has some facility with the language used in the proceeding. Furthermore, the Court of Appeal confirmed that the standard of interpretation under s. 14 is not perfection and that the burden of proof is on the accused and the standard of proof is balance of probabilities [emphasis is mine below]:
Section 14 of the Canadian Charter of Rights and Freedoms states that “[a] party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.”
(3) Applicable Legal Principles
The leading case in Canada on s. 14 of the Charter is Tran. In that decision, Lamer C.J. noted at pp. 960-61 that s. 14 confers on an accused “a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court”.
He also described at p. 977 the purposes served by s. 14:
First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness. As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society's claim to be multicultural, expressed in part through s. 27 of the Charter. The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.
A party must have the same opportunity to understand and be understood as if they were conversant in the language being used in the proceedings: at pp. 977-78. That said, the Chief Justice cautioned that the principle of linguistic understanding should not be elevated to the point where those with difficulty communicating in or comprehending the language of the proceedings are given or seen to be given unfair advantage. “Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others” (emphasis in original): at p. 978. This principle was emphasized by Wagner C.J. in R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, a case dealing with official language rights and s. 530 of the Criminal Code, R.S.C., 1985, c. C-46, where he stated, at para. 6, that instrumentalizing language rights on appeal is a highly objectionable practice that must be sanctioned to the greatest extent possible. Language rights should not be raised for the first time on appeal for an ulterior motive or for purely strategic reasons.
To establish a breach of s. 14, first it must be clear that the accused was in need of interpreter assistance – they did not understand or speak the language used in court. In this regard, courts have an independent responsibility to ensure the accused understands the language and is understood. Establishing need is not normally an onerous step unless the issue of interpretation is being raised for the first time on appeal and/or there is some question as to whether it is being raised in bad faith: Tran, at p. 979.
Second, the accused must show a departure from the standard of interpretation that is required to ensure that they have the same opportunity to understand and be understood as if they were conversant in the language used in court. This standard can be helpfully defined by reference to a number of criteria, including continuity, precision, impartiality, competency, and contemporaneousness: Tran, at p. 985; Rybak, at paras. 80-81. Precision and competency, which are the principal elements engaged on this appeal, must ensure that the interpretation is of a high enough quality to ensure that justice is done and seen to be done.
Third, the accused must establish that the alleged lapse in interpretation occurred in the course of the proceeding itself when a vital interest of the accused was involved – i.e., when the case was being advanced: Tran, at pp. 979-80; Rybak, at para. 86.
According to Tran, the question is whether there is a possibility that accused parties may not have understood a part of the proceedings by virtue of their difficulty with the language used in court: at pp. 990-91. That said, the standard of interpretation under s. 14 is not perfection. The burden of proof is on the accused and the standard of proof is balance of probabilities.
Chief Justice Lamer described the question to be answered at pp. 990-91 of Tran:
Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s. 14, the principle which informs the right – namely, that of linguistic understanding – should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.
A court is not to engage in speculation as to whether the lack of or lapse in interpretation made any difference to the outcome of the case: Tran, at p. 994.
Chief Justice Lamer summarized at p. 998:
The scope of the right to interpreter assistance guaranteed by s. 14 of the Charter may be stated in the following broad terms. The constitutionally guaranteed standard of interpretation is not one of perfection; however, it is one of continuity, precision, impartiality, competency and contemporaneousness. An accused who does not understand and/or speak the language of the proceedings, be it English or French, has the right at every point in the proceedings in which the case is being advanced to receive interpretation which meets this basic standard. To establish a violation of s. 14, the claimant of the right must prove on a balance of probabilities not only that he or she was in need of assistance, but also that the interpretation received fell below the basic, guaranteed standard and did so in the course of the case being advanced. Unless the Crown is able to show on a balance of probabilities that there was a valid and effective waiver of the right which accounts for the lack of or lapse in interpretation, a violation of the right to interpreter assistance guaranteed by s. 14 of the Charter will have been made out. While there will be circumstances in which waiver of the right to interpreter assistance will not be permitted for reasons of public policy, in situations where waiver is possible, the Crown must not only show that the waiver was clear and unequivocal and made with a knowledge and understanding of the right, but also that it was made personally by the accused or with defence counsel's assurance that the right and the effect on that right of waiving it were explained to the accused in language in which the accused is fully conversant.
The absence of a timely objection does not constitute a waiver of the s. 14 right. Nor is it determinative of a s. 14 claim on appeal: R. v. Mitroi, 2018 BCCA 236, 362 C.C.C. (3d) 374, at para. 31. It can, however, be a very serious consideration in determining whether the accused has satisfied the burden of proving that interpreter assistance was required and that the interpretation provided fell short of the requisite standard. This is particularly relevant in situations where the accused needs only limited assistance from the interpreter and is able to follow the court’s direction that they speak up about interpretation problems, but fails to do so: Rybak, at paras. 94-96 and 101; L.C.T., at paras. 82-85.
Courts must not be too quick to draw adverse inferences where the accused has some facility with the language used in the proceeding: Tran, at p. 985. Judges must avoid falling into the trap of the “misinterpretation fallacy” by always expecting the accused to identify errors when they have limited understanding of the language being interpreted to or from: M.R., at para. 39; Dutt, at para. 30, citing R. v. Koaha, 2008 NUCA 1, 432 A.R. 343, at para. 29. As the Saskatchewan Court of Appeal noted in R. v. Gill, 2017 SKCA 76, 356 C.C.C. (3d) 103, at para. 54: “a claimant who lacks comprehension or the ability to communicate may be totally unaware of deficiencies in the interpreter assistance provided.” This is one of the challenges associated with a lack of complaint. If the accused do not understand or speak English, how are they always to know whether something has been improperly interpreted?
The Tran criteria of continuity, precision, impartiality, competency and contemporaneousness are not exhaustive but help in assessing the interpretation that was provided.
As Tran instructed, prejudice is not required to establish a breach of s. 14 although Saini, at para. 37 suggests that the number, quality and impact of the interpretation errors are relevant. See also S.A., at paras. 26-32.
It remains to address whether, as the appellant submits, a voir dire into the qualifications of Ms. Auyang ought to have been conducted as suggested in Dutt.
Courts have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justice and therefore to protect an accused’s right to interpreter assistance, irrespective of whether the right has been formally asserted: Tran, at pp. 979 and 981.
By the time a criminal case is called for trial, the need for interpreter assistance has generally already been established. Nonetheless, a trial judge’s gatekeeping role includes being satisfied with the qualifications of the interpreter. Where there is legitimate reason to doubt the interpreter’s competence, the trial judge should conduct an inquiry into the interpreter’s qualifications: Tran, at p. 988; Rybak, at para. 83; R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, at para. 108.
A trial judge should inquire into whether the proposed interpreter has been accredited or conditionally accredited by MAG. Neither the presence nor absence of accreditation can be considered dispositive of whether the interpretation provided is competent: Rybak, at para. 84; Singh, at para. 109. If a proposed court interpreter is not accredited or conditionally accredited by MAG, though discretionary, a trial judge should give serious consideration to conducting a voir dire. See R. v. Gadam, 2015 ONSC 7204, at para. 10. For lengthy and complex proceedings, it may be advisable to err on the side of caution. The greatest degree of confidence will be provided where an interpreter has been tested in both the language used in court and the language of the accused: Dutt, at para. 97. At the same time, a trial judge must always be mindful that court time be used efficiently and may consider a voir dire to be unnecessary.
At the outset of the proceedings, the trial judge should establish a system for the accused to advise the court if any difficulty with the interpretation arises: R. v. Sidhu (2005), 2005 CanLII 42491 (ON SC), 203 C.C.C. (3d) 17 (Ont. S.C.), at para. 335(8). It is advisable to use the interpreter to ensure that the accused understands the importance of alerting the court about any deficiency in interpretation at the earliest opportunity. This is particularly important if the defence counsel does not understand the accused’s language and is not in a position to notice any problem with the interpretation.
After the proceeding has begun, the trial judge and both counsel should remain alert to any interpretation problem that appears to arise. Some interpretation errors or lapses can be adequately cured by having the court reporter read back the relevant parts so that they can be re-interpreted: Tran, at p. 1010. The presiding judge may also offer to re-commence the hearing of an issue to cure the absence of an interpreter or any interpretation issue that has occurred: Rybak, at para. 45. At times, it may even be necessary to conduct a further inquiry into the interpreter’s competence: M.R., at paras. 34-40.
That said, as noted by the Manitoba Court of Appeal in R. v. Gebru, 2019 MBCA 73, 378 C.C.C. (3d) 468, at para. 63, there is no magic formula as to what a trial judge should say and do. The key is to ensure that there is compliance with the principles described in Tran and reflected in the wording of s. 14. I would also add that defence counsel has a role to play: Rybak, at para. 75. The need for a competent interpreter should be raised at the earliest opportunity so as to ensure that no difficulties subsequently arise.
No voir dire was conducted into the competency of Ms. Auyang. At a minimum, it would have revealed that she was conditionally accredited and might have revealed that she was never tested in Taishanese. The appellant requested a Taishanese interpreter and a voir dire could have revealed that this was not Ms. Auyang. I acknowledge that in this case, the judge was in a difficult position as Ms. Auyang provided an oath that she would translate English into the Taishanese dialect of the Cantonese language yet did not. In addition, she mistranslated the appellant as saying that the interpretation was okay when he had not said that.
To close, as Lamer C.J. observed in Tran, at pp. 976-77, “a multicultural society can only be preserved and fostered if those who speak languages other than English and French are given real and substantive access to the criminal justice system.” As I have concluded that the appellant’s s. 14 Charter right was breached, I would order a new trial. Under the circumstances, there is no need to address the remaining grounds of appeal.
88Also, in R. v. Saini [2023] O.J. No. 2813, 2023 ONCA 445, at paras. 31 to 46, the Court of Appeal for Ontario considered an appeal argument that the accused had not been accorded adequate language interpretation under s. 14 of the Charter. The Court of Appeal indicated that s. 14 of the Charter confers upon all accused a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court. Furthermore, the Court of Appeal held that the right to obtain the assistance of an interpreter ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it: R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, S.C.J. No. 16 (S.C.C.). To establish a breach of s. 14 of the Charter, the Court of Appeal held that a person alleging a violation must show that (i) they needed an interpreter, (ii) there was a departure from the basic, constitutionally guaranteed standard of interpretation, and (iii) the alleged lapse in interpretation occurred “in the course of the proceedings themselves when a vital interest of the accused was involved, i.e., while the case was being advanced, rather than at some point or stage which was extrinsic or collateral to the advancement of the case.” In other words, the Court of Appeal noted that an appellant must demonstrate that there is a real possibility that the appellant either did not understand or was misunderstood. The Court of Appeal also held that the onus to establish a breach of s. 14 of the Charter falls on the party asserting the violation and the standard of proof is on a balance of probabilities. Moreover, the Court of Appeal stated that once a court is satisfied that the first three requirements have been met, a violation of s. 14 will have been made out unless the Crown is able to prove, again on a balance of probabilities, that there was a valid and effective waiver of the right which accounts for the lapse in (or lack of) interpretation shown to have occurred. In addition, the Court of Appeal held that this must be assessed in the overall context of the trial and not on a piecemeal basis and that the standard is not perfection given the real time demands of the court room, the possibility of ambiguity in the original phrases, and the fact that there may not always be an exact translation for certain phrases and the standard is lower than it might be for translation of a written document. Furthermore, the Court of Appeal indicated that the number, quality and impact of the errors are all relevant [emphasis is mine below]:
The Third Ground of Appeal: Breach of a Charter Right to Interpretation
Third, the appellant claims his section 14 Charter right to the assistance of an interpreter was breached.
The appellant brings an application to introduce fresh evidence, which he claims supports his argument that his s. 14 Charter right to the assistance of an interpreter was breached. The evidence consists of an affidavit on behalf of the appellant’s trial counsel, and an affidavit of Muhammad Shafique (who also interpreted at the applicant’s trial), to which two “error reports” are appended.
Given his difficulties with English, the appellant required the services of interpreters throughout the trial and sentencing. He claims the basic standard of interpretation was not met. He claims that he did not appreciate the extent of the problem until an assessment of the evidence was done by an expert translator after his sentence was imposed.
The appellant submits that the admissibility of the proposed fresh evidence be evaluated through the lens of Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. However, the proposed fresh evidence does not purport to address an issue litigated at trial; instead, it seeks to shed light on the validity of the trial process. I would admit the evidence on this more limited basis, which does not inevitably result in the ordering of a new trial: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at para. 17.
Section 14 of the Charter confers upon all accused a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court. The right to obtain the assistance of an interpreter ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it: R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951.
A person alleging a violation must show that (i) they needed an interpreter, (ii) there was a departure from the basic, constitutionally guaranteed standard of interpretation, and (iii) the alleged lapse in interpretation occurred “in the course of the proceedings themselves when a vital interest of the accused was involved, i.e., while the case was being advanced, rather than at some point or stage which was extrinsic or collateral to the advancement of the case.” In other words, an appellant must demonstrate that there is a real possibility that the appellant either did not understand or was misunderstood: Tran, at pp. 978-991; R. v. Rybak, 2008 ONCA 354, 233 C.C.C. (3d) 58, at paras. 72-86; Little c. R., 2022 QCCA 1138, at para. 15; R. v. Gill, 2017 SKCA 76, 356 C.C.C. (3d) 103, at paras. 44-48; R. v. Match, 2015 BCCA 271, 326 C.C.C. (3d) 41, at paras. 8-10.
The onus to establish a breach of s. 14 of the Charter falls on the party asserting the violation and the standard of proof is on a balance of probabilities. Once a court is satisfied that the first three requirements have been met, a violation of s. 14 will have been made out unless the Crown is able to prove, again on a balance of probabilities, that there was a valid and effective waiver of the right which accounts for the lapse in (or lack of) interpretation shown to have occurred. This must be assessed in the overall context of the trial and not on a piecemeal basis. The standard is not perfection given the real time demands of the court room, the possibility of ambiguity in the original phrases, and the fact that there may not always be an exact translation for certain phrases and the standard is lower than it might be for translation of a written document. The number, quality and impact of the errors are all relevant: Little, at paras. 17-19, 51; Tran, at pp. 986-988; and R. v. S.A., 2021 ONCA 434, at paras. 26-32.
In this case, the interpreter at issue did not interpret for the entire trial; six other interpreters, none of whom have been impugned, also assisted the appellant.[2]
The appellant’s expert, Mr. Shafique, reviewed approximately 115 minutes of evidence which the appellant claimed was in issue. In his affidavit, he identified only one error in the translation of the evidence. The alleged error is that the words “You do not normally nap” were interpreted to mean “You do not normally take small sleep”. This is at most an inexact translation and in any event, it is not material.
The other alleged errors relate to a portion of proceedings on June 19, 2018, after the evidence had concluded, during which the trial judge read a ruling relating to the admissibility of hearsay evidence; a portion of the proceedings on June 21, 2018, during which the Crown made closing submissions; and the trial judge’s delivery of his Reasons for Sentence on November 9, 2018.
Much of the June 19 portion is a discussion about scheduling time for submissions. In the Crown’s closing submissions, Crown counsel summarized evidence already adduced by witnesses in the proceeding. Although the audiotape of the translation included some inaudible words, Mr. Shafique characterized the problem as, “the interpreter could not catch up with [the] speed” of the proceedings. The appellant, however, did not indicate that there was anything he did not understand which weighs against his assertion that inadequate interpretation prevented him from meaningfully participating in his trial: see, e.g., R. v. L.C.T., 2012 ONCA 116, 288 O.A.C. 133, at paras. 81-83; R. v. Pham, 2004 CanLII 33346 (ON CA), at para. 6.
The bulk of the alleged interpretation errors occurred during the trial judge’s reading of his lengthy Reasons for Sentence on November 9. The trial judge read his reasons aloud and did not take regular breaks, making it difficult for the interpreter to interpret simultaneously. During the reading of the Reasons for Sentence, the appellant’s trial counsel stated that he did not believe the interpreter was translating all parts of the reasons and the interpreter was not speaking loudly enough. Upon review, some parts of the audiotape with interpretation are inaudible. In his error report, Mr. Shafique identified several specific alleged translation errors but, for the most part, he characterized the interpreter’s translation of various portions of the Reasons for Sentence as “Interpreter summarizes majority of what the judge has said” or “Interpreter summarizes minimum of what the judge has said”.
In sum, the only material errors in interpretation occurred during the reading of the Reasons for Sentence. They did not affect the appellant’s ability to prepare his case, present his case, make submissions to the court, or affect the trial judge’s analysis of the evidence.
Where missing parts of a proceeding can be cured by reading back the missing parts to allow the interpreter to translate them, it may not be necessary to order a new hearing of the issue: Tran, at pp.1010-1011. That is the situation here.
We would order the Crown to obtain a certified translation of the Reasons for Sentence, from English to Punjabi. They will be provided to the appellant so that he has a full and complete appreciation of the reasons for his sentence. A copy of the translated Reasons for Sentence will be filed with the court by providing a copy to the Executive Legal Officer. Consequently, since the appellant has demonstrated no material errors in the translation of the evidence adduced at trial, a new trial is not warranted.
In short, the portions of the interpretation the applicant has impugned do not reveal a real possibility that the interpretation impaired his ability to understand the trial proceedings or make full answer and defence. For these reasons, I would dismiss the third ground of appeal.
(ii) A court is not to engage in speculation as to whether the lack of or lapse in interpretation made any difference to the outcome of the case
89Lamer C.J. for the Supreme Court of Canada at para. 72 in R. v. Tran, also commented that at the stage where it is being determined whether an accused's s. 14 rights were in fact violated during the court proceeding, courts should not engage in speculation as to whether or not the lack of or lapse in interpretation in a specific instance made any difference to the outcome of the case [emphasis is mine below]:
With respect to the question of what has to be established by the party asserting a violation of s. 14 of the Charter, I wish to make one final comment. In my view, it is crucial that, at the stage where it is being determined whether an accused's s. 14 rights were in fact violated, courts not engage in speculation as to whether or not the lack of or lapse in interpretation in a specific instance made any difference to the outcome of the case. To second-guess the defence's strategy in a particular case, or to ponder the utility of proper interpretation, is an inherently dangerous exercise. It is impossible to know for sure what would have happened if an accused had been provided with full and contemporaneous interpretation of the proceeding in question. For example, one can never really know what might have been triggered in an accused's mind had he or she received the interpretation to which he or she is entitled under s. 14 of the Charter.
(iii) Under the Canadian Bill of Rights a person has the right to the assistance of an interpreter in any proceedings in which the person is a party or a witness before a court, commission, board or other tribunal
90Section 2g) of the Canadian Bill of Rights, S.C. 1960, c. 44, provides that no law of Canada shall be construed or applied so as to deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted [emphasis is mine below]:
- Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.
(iv) under the Ontario Rules of Civil Procedure an interpreter is to be provided for a witness at trial who does not understand the language in which the direct examination, cross-examination and re-examination of the witness is to be conducted
91Furthermore, the right to an interpreter has also been applied in various types of civil and administrative cases, such as refugee proceedings and spousal support proceedings.
92Under subrule 34.09 for oral examination and subrules 53.01(5) and (6) for examination at trial under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, promulgated under the Courts of Justice Act, R.S.O. 1990, c. C.43, the party calling the witness shall provide the interpreter, unless the interpretation is to be from English to French or from French to English and an interpreter is provided by the Ministry of the Attorney General:
Interpreter
34.09(1) Where the person to be examined does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the person is examined, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation and the questions to and answers of the person being examined.
(2) Where an interpreter is required by subrule (1) for the examination of,
(a) a party or a person on behalf or in place of a party, the party shall provide the interpreter;
(b) any other person, the examining party shall provide the interpreter,
unless the interpretation is from English to French or from French to English and an interpreter is provided by the Ministry of the Attorney General.
Interpreter
53.01(5) Where a witness does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the witness is called, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation to the witness, the questions put to the witness and his or her answers.
53.01(6) Where an interpreter is required under subrule (5), the party calling the witness shall provide the interpreter, unless the interpretation is to be from English to French or from French to English and an interpreter is provided by the Ministry of the Attorney General.
93In addition, in Skorski v. St. Catharines Canadian Polish Society, [1999] O.J. No. 434 (O.C.J. (Gen. Div.)), Quinn J. reasoned at paras. 6 to 15, that where a witness professes an inability to understand the English language and this fact is disputed by one of the parties, then the proper procedure is to conduct a voir dire in which the party seeking to use an interpreter must establish, on a balance of probabilities, the need for an interpreter and any party opposing the use of an interpreter may cross-examine the witness in order to test his or her knowledge of the English language and thereby disprove the need. During the voir dire in respect to the need for an interpreter, the evidence adduced indicated that the plaintiff is 73 years of age, born in Poland and came to Canada when he was 26, and had only a grade nine education and was unable to speak English. However, in 1958 the plaintiff started his own business - an auto body repair shop and gas station. In addition, the plaintiff had been examined for discovery over two days in English and never gave any indication then, or later, that he was linguistically disadvantaged; and, several months ago, he went through a General Division civil trial and did not use, or ask for, the services of a Polish interpreter (even though one was present in the court room for the benefit of other witnesses who required such assistance). Notwithstanding his use of the English language in those earlier proceedings, the plaintiff insists that he would be more comfortable if allowed to give his evidence through a Polish interpreter. After conducting the voir dire, Quinn J. held that the court had not been persuaded that the plaintiff has proved a need for an interpreter and that the court was not satisfied he will be prejudiced if obliged to give his evidence in the English language [emphasis is mine below]:
The only rules dealing with this matter are subrules 53.01(1) and (5) of the Rules of Civil Procedure. They state, in part:
(1) Unless these rules provide otherwise, witnesses at the trial of an action shall be examined orally in court and the examination may consist of direct examination, cross-examination and re-examination.
(5) Where a witness does not understand the language ... in which the examination is to be conducted ... a competent and independent interpreter shall ... take an oath ... to interpret accurately ... the questions put to the witness and his or her answers.
(Emphasis added)
I was not directed to any decisions, reported or otherwise, under subrule 53.01(5) to assist either in the interpretation of the words "Where a witness does not understand the language ..." or in ascertaining how one goes about deciding whether "a witness does not understand the language."
Counsel brought to my attention a passage from The Law of Evidence in Canada with which I am not in total agreement. It is as follows (and I have added emphasis to the part with which I disagree):
... the trial judge is not bound to accept the statement of counsel producing the witness as to the linguistic ability of the witness, but may allow the examination to proceed to make an independent determination.
The authority for this statement is shown as Filios v. Morland. Where a witness professes an inability to understand the English language, and this fact is disputed by one of the parties, I do not think it desirable to have the witness testify in English and take a "wait and see" stance on the question of whether the inability indeed exists. Surely such an approach is fraught with risk. If, part way through the testimony of the witness, it is determined that his ability to fully and fairly put forward his evidence is being impaired by a lack of comprehension of, or fluency in, the English language, and an interpreter is thereafter deemed necessary, what becomes of the evidence of the witness up to that point? In my view, the proper procedure is to conduct a voir dire in which the party seeking to use an interpreter must establish, on a balance of probabilities, the need for an interpreter and any party opposing the use of an interpreter may cross-examine the witness in order to test his or her knowledge of the English language and thereby disprove the need.
Counsel for the plaintiff submitted that the right to an interpreter is a prima facie right: in other words, counsel argued that there is a presumptive right to an interpreter merely upon request. He placed reliance upon this statement in Donkin v. The "Chicago Maru":
Each party is in strictness entitled to an interpreter.
If this statement stands for the proposition espoused on behalf of the plaintiff I am in respectful disagreement. I cannot see any reason, rooted in law or policy, why a witness seeking the use of an interpreter should be granted a presumptive entitlement and spared having to prove that entitlement. There is no doubt that a witness has a right to an interpreter. This is clear from rule 53.01(5) and, more fundamentally, from s. 14 of the Canadian Charter of Rights and Freedoms. However, that right may only be exercised where the need for an interpreter has been demonstrated.
Accordingly, in the case at bar, I directed that we embark upon a voir dire. The plaintiff was sworn, examined in-chief by his counsel and cross-examined by counsel for the defendant.
- The principles to be considered
In deciding whether a witness is entitled, pursuant to subrule 53.01(5) of the Rules of Civil Procedure, to give his or her evidence through an interpreter, I think the following are appropriate considerations:
(a) The request for an interpreter should be treated with the utmost seriousness.
(b) The central consideration is one of prejudice. A witness is prejudiced if his lack of proficiency in the English language prevents him from fully and fairly putting his evidence before the court.
(c) A party opposing the use of an interpreter is almost always prejudiced. This prejudice, in having to cross-examine through an interpreter, is so obvious that it hardly needs mentioning. It was long ago put this way in R. v. Burke:
... the value of [cross-examination] is very much lessened in the case of a witness having a sufficient knowledge of the English language to understand the questions put by counsel, pretending ignorance of it, and gaining time to consider his answers while the interpreter is going through the useless task of interpreting the question which the witness already perfectly understands.
(d) Any prejudice to the witness desiring the use of an interpreter invariably trumps the almost-inevitable prejudice to the cross-examining party.
(e) If a request for an interpreter is disputed, a voir dire should be conducted. I think that it would be rarely appropriate to resolve the matter by means of submissions only; and it would be dangerous to require the witness to testify in English while a "wait and see" approach is taken to the determination of his linguistic skills.
(f) On the voir dire the witness who professes a need for an interpreter must prove that need on a balance of probabilities. Need is proved if prejudice is established; and prejudice exists if, as indicated above, the lack of proficiency of the witness in the English language prevents him from fully and fairly putting his evidence before the court.
(g) The court has a vested interest in the matter. Justice is jeopardized if a witness testifies in a language with which he is not sufficiently proficient. In addition, not only must the witness be able to understand the questions but the court must be able to understand the witness. Therefore, the trial judge should not be thwarted by a less-than-thorough voir dire and may put questions to the witness directly.
(h) The trial judge should be alive to the prospect that the use of an interpreter is desired merely to gain a tactical advantage rather than to satisfy a legitimate need.
(i) The mere fact that the witness persists in asserting his ignorance of the English language does not necessarily, by itself, carry the day. The issue is not persistence but need.
(j) It is a question of fact whether the need for an interpreter has been proved. However, once need has been found to exist the use of an interpreter must, as a matter of law, be permitted.
- The evidence on the voir dire
The plaintiff is 73 years of age. He was born in Poland and came to Canada when he was 26. At that time he had a grade nine education and was unable to speak English. Nonetheless, in 1958 he started his own business - an auto body repair shop and gas station. Subsequently, he took a six week course in bookkeeping and accounting which I understand was a requirement of Texaco, his gas supplier. He operated that business for 30 years. Most of his customers spoke Polish but others spoke only English. He held executive positions, including president, of a regional association of business colleagues most of whom, by far, I gather, spoke only English. He has friends who are wholly English-speaking, subscribes to the St. Catharines Standard (a newspaper published only in the English language) and instructed his counsel in English throughout this action.
Most telling, however, are these facts: he was examined for discovery over two days in English and never gave any indication then, or later, that he was linguistically disadvantaged; and, several months ago, he went through a General Division civil trial (involving, as I understand it, a claim of defamation not wholly unrelated to some of the events alleged to have occurred in the within action) and did not use, or ask for, the services of a Polish interpreter (even though one was present in the court room for the benefit of other witnesses who required such assistance).
Notwithstanding all of this, the plaintiff insists that he would be more comfortable if allowed to give his evidence through a Polish interpreter. I would have expected his discomfort to have surfaced much earlier than after the commencement of this hearing.
I found, during the voir dire, that the plaintiff easily fielded the questions put to him. Admittedly, he does speak with an accent, but that neither prevented him from answering the questions nor affected the ability of the court to understand his answers.
In the result, I am not persuaded that the plaintiff has proved a need for an interpreter. I am not satisfied he will be prejudiced if obliged to give his evidence in the English language.
(v) The Ministry of the Attorney General of Ontario provides court interpretation services in any language for criminal and child protection matters without a fee
94Furthermore, according to the “Get a court interpreter” information page, online: ontario.ca website <https://www.ontario.ca/page/get-court-interpreter>, the Ministry of the Attorney General provides court interpretation services for the following:
any language required in criminal and child protection matters
any language in civil, family and small claims court if the litigant qualifies for a fee waiver
French in all civil, family and Small Claims Court matters
sign language in all court matters
any language when it is ordered by the court.
(b) The Right To An Interpreter for Non-Court-Related Matters
[95] The defendant’s s. 14 Charter right to being provided an interpreter in the Arabic language with an Iraqi dialect for his trial of the s. 149(1) offence has been fulfilled, but for his conversations with the WSIB staff and with his health professionals s. 14 of the Charter does not apply to the defendant. This is because, for general public services and medical appointments which are matters outside of formal court "proceedings" or the immediate judicial system, there is generally no independent constitutional or statutory right to the assistance of a government-funded interpreter to communicate with and receive services, unless it is in the English or French language from federal and provincial government offices. However, some government services at government agencies and institutions do provide interpretations services.
(i) Is there a right to an interpreter for a claimant under the [Workplace Safety and Insurance Act, 1997](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-16-sch-a.html)?
96Under s. 178 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, there is only a provision for an interpreter being provided to a claimant for the French language for services under the Act:
French language services
178 Services under this Act shall be made available in the French language where appropriate.
(ii) For non-court related matters, under provincial legislation a person in Ontario must be provided available services in the French language in respect of any other office of such agency or institution in a designated area in Ontario
97Furthermore, there is no provincial legislation that requires the Ontario government for non-court related matters to provide services in a language other than in the English language, except for the French language for non-court related services in respect to any head or central office of a government agency or institution of the Ontario Legislature. Specifically, under s. 5(1) of the French Language Services Act, R.S.O. 1990, c. F.32, a person in Ontario has the right to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves a designated area under the legislation. Under s. 1(b), the WSIB would fall within the definition of a government agency which would be required to provide services and communication to any person in the French language which requires it [emphasis is mine below]:
Definitions
1 In this Act,
“government agency” means,
(a) a ministry of the Government of Ontario, except that a psychiatric facility, residential facility or college of applied arts and technology that is administered by a ministry is not included unless it is designated as a public service agency by the regulations,
(b) a board, commission or corporation the majority of whose members or directors are appointed by the Lieutenant Governor in Council,
(c) a non-profit corporation or similar entity that provides a service to the public, is subsidized in whole or in part by public money and is designated as a public service agency by the regulations,
(d) a long-term care home as defined in the Fixing Long-Term Care Act, 2021 that is designated as a public service agency by the regulations or a home for special care as defined in the Homes for Special Care Act that is designated as a public service agency by the regulations,
(e) a service provider as defined in the Child, Youth and Family Services Act, 2017 or a board as defined in the District Social Services Administration Boards Act that is designated as a public service agency by the regulations,
and does not include a municipality, or a local board as defined in the Municipal Affairs Act, other than a local board that is designated under clause (e);
“service” means any service or procedure that is provided to the public by a government agency or institution of the Legislature and includes all communications for the purpose.
Right to services in French
5(1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule.
(iii) Interpreters for Medical Appointments with Health Professionals
98The College of Physicians and Surgeons of Ontario requires applicants for medical registration to demonstrate English or French proficiency. In addition, under s. 10(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, a health practitioner who proposes a treatment for a person shall not administer the treatment and shall take reasonable steps to ensure that it is not administered, unless he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent. In the College of Physicians and Surgeons of Ontario recently approved Consent to Treatment Policy of March 2025 (https://www.cpso.on.ca/physicians/policies-guidance/policies/consent-to-treatment), physicians must consider and address language and communication issues that may impede a patient’s ability to give valid consent and that physicians must use their professional judgment to determine whether it is appropriate to use a patient’s family members or friends as interpreters and only do so where it is in the patient’s best interests. In addition, in the accompanying Advice to the Profession (https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Consent-to-Treatment/Advice-to-the-Profession-Consent-to-Treatment), the College of Physicians and Surgeons of Ontario advises physicians
that in many cases using a patient’s family members or friends as interpreters could be the most accessible, convenient, practical, and comfortable option for patients, it also warns that using family members or friends as interpreters can present challenges, such as language limitations, difficulty understanding medical terms, inter-family dynamics and conflict, or important information being deliberately or accidentally omitted. As such, for particularly higher risk or complex treatment plans, the College of Physicians and Surgeons of Ontario advises physicians that they can consider a formal or third-party interpretation service, where available. Moreover, the College of Physicians and Surgeons of Ontario also advises that the physician must also obtain consent to share the patient’s personal health information with any interpreter, regardless of whether the interpreter is a family member or a third party. And, more importantly, physicians and health care providers are also advised that they are ethically required to document in the patient’s clinical record that an interpreter was used and their role in the consent process.
99Moreover, in Raj Anand’s article presented at the 2008 Conference for The Society of Ontario Adjudicators and Regulators, entitled “Lifeline: Language Access As A Human Rights Issue”, online: Society of Ontario Adjudicators and Regulators website <https://soar.on.ca/node/96 or Anand Lifeline Language access as a human rights issue | The Society of Ontario Adjudicators and Regulators>, Raj Anand comments that language barriers can lead to violations of ethical standards of care by doctors who are unable to effectively communicate with their patients [emphasis is mine below]:
Health Care Practitioners
Language barriers can lead to violations of ethical standards of care by doctors who are unable to effectively communicate with their patients. There are three identified ways in which care can be compromised: a) failure to provide the same standard of care to all patients; b) failure to protect patient's confidentiality; and c) failure to ensure that the patients properly consent to treatment. (a) Standard of Care to Patients As we have seen in the above case analogies, the standard of care patients receive can be gravely affected by differences in languages. Those that do not speak either of Canada's official language are at risk of receiving inferior treatment. The practical reality of this is that individuals who seek the care of physicians in Canada are at a greater risk for misdiagnosis, injury or death. In essence, these individuals are being unnecessarily discriminated against. (b) Confidentiality Where family members or ad hoc interpreters are used, confidentiality can be violated. Patients who face language barriers can have sensitive medical information relayed to individuals who were not the intended recipients. (c) Consent to Treatment Another area of concern in the context of language has to do with obtaining informed consents from patients. When a patient who does not speak one of the official languages gives their consent to a procedure, there is often doubt as to whether or not the consent is valid. Often, the patient may not understand what he or she is consenting to.
This problem is further compounded when untrained interpreters or family members are used to gain the consent. These individuals may not relay key concepts or can alter the message that the health care practitioner is trying to relay.
Conclusion
Language barriers will continue to predominate as issues in the provision of consistent health care in Canada. Although the Courts have taken steps to remedy the injustices with respect to the hearing impaired community and have guaranteed the right of Franco-Ontarians to a French hospital, the First Nation, Inuit and Immigrant communities continue to face hurdles to proper health care services.
(iv) The failure to provide an interpreter to a WSIB claimant may be an [Ontario Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) violation
100Although this court does not have the jurisdiction to deal with the Ontario Human Rights Code, the circumstance in which the WSIB does not provide an interpreter for an injured worker, if one is genuinely needed, may be a violation of the Ontario Human Rights Code.
101And, even though the failure to provide an interpreter to a person for non-trial dealings with a government or a non-government official, is not protected under s. 14 of the Charter, it may run afoul of Ontario’s Human Rights Code, R.S.O. 1990, c. H.19. For instance, in Fiordimondo v. Ontario (Workplace Safety and Insurance Board), [2013] O.H.R.T.D. No. 2296 (Ontario Human Rights Tribunal), Fiordimondo had brought a discrimination claim based on ethnic origin to the Ontario Human Rights Tribunal in which he had based his discrimination claim on the lack of an interpreter being provided by the WSIB for a medical assessment and that he had also claimed that the interpreter assigned to interpret for him during his psychological and vocational tests did not provide accurate interpretation. At paras. 12 and 19, Vice-Chair Jo-Anne Pickel, found that Fiordimondo’s discrimination claim based on allegations about the WSIB's failure to provide timely or accurate interpretation services stood no reasonable prospect of success and that Fiordimondo has not provided any evidence from which the Tribunal could reasonably find that the delay or inadequacy with respect to the interpretation services in this case amounted to a violation of the Human Rights Code [emphasis is mine below]:
The applicant began receiving benefits from the WSIB after he was injured at work in August 2011. In his Application, he set out various incidents that, in his view, support his allegations of discrimination because of disability and reprisal under the Code. Specifically, in his Application, he set out the following incidents:
e. The applicant requested an interpreter for a medical assessment at a department within the University Health Network ("UHN") that focuses on the delivery of health care services to injured workers. The respondent told him an interpreter would be provided on site. No interpreter was provided. An interpreter was eventually provided after the applicant made a formal written request to his WSIB case manager.
j. The applicant claimed the interpreter assigned to interpret for him during his psychological and vocational tests did not provide accurate interpretation. When the applicant complained to the WSIB, his case manager told him that the WSIB contracts with an external interpretation service and cannot be responsible for the quality of the interpretation.
I find that the applicant's allegations about the WSIB's failure to provide timely or accurate interpretation services in subparagraphs 12 e. and j. also stand no reasonable prospect of success. Although the applicant alleged disability-related discrimination with respect to these incidents in his Application, he sought to characterize these allegations at the summary hearing as being allegations of discrimination because of ethnic origin. As noted above, in one instance interpretation services were provided by the WSIB after the applicant filed a formal written request. In the other situation, the WSIB contracted for interpretation by a third party interpreter but the applicant was not satisfied with the quality of the interpretation by this interpreter. The applicant has not provided any evidence from which the Tribunal could reasonably find that the delay or inadequacy with respect to the interpretation services in this case amounted to a violation of the Code.
102Moreover, in his paper, entitled, “Lifeline: Language access as a human rights issue”, online: The Society of Ontario Adjudicators and Regulators 2008 Conference website <Anand Lifeline Language access as a human rights issue | The Society of Ontario Adjudicators and Regulators>, Raj Anand noted that Ontario’s Human Rights Code does not specifically refer to “language” as a prohibited ground of discrimination, so in that general, cases involving language discrimination are either argued on the ground of “national or ethnic origin” or through “place of origin”. Anand also commented that for health professionals language barriers can lead to violations of ethical standards of care by doctors who are unable to effectively communicate with their patients and that there are three identified ways in which care can be compromised: (a) failure to provide the same standard of care to all patients; (b) failure to protect patient's confidentiality; and (c) failure to ensure that the patients properly consent to treatment. [emphasis is mine below]:
LIFELINE: LANGUAGE ACCESS AS A HUMAN RIGHTS ISSUE
According to the Ontario Human Rights Code (the “Code”) every person has a right to equal treatment with respect to employment, services, accommodation “without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.” Similarly, the Canadian Human Rights Act (the “Act”) sets out the following prohibited grounds of discrimination as: “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.” It is interesting to note that neither the Code nor the Act specifically refers to “language” as a prohibited ground of discrimination. Generally, cases involving language discrimination are either argued on the ground of “national or ethnic origin” or through “place of origin”. Although not related to health care, the cases of Espinoza v. Coldmatic Refrigeration of Canada Ltd. and Segula v. Ferrante and Ball Packaging Products Inc. do deal with language as the basis for claims of discrimination on the basis of "ethnic origin" and "place of origin" under the Code. Espinoza involved a complaint from a Spanish-speaking employee of Coldmatic who claimed that he and others were routinely insulted and abused by their supervisor and other employees. The majority of the employees who were Spanish speaking had poor English skills. The Board of Inquiry (the "Board") who heard the complaint found that Coldmatic had created a poisoned work environment for people of Hispanic origin by verbally insulting and abusing them. It was clear that the supervisor did not like people who did not speak English and made no attempt to conceal that fact. The Board further found that Coldmatic had created a subclass of workers in its factory and that they treated their employees differently as a result of "ethnicity" and "place of origin". In defining the markers of ethnicity, the Board stated that "their ethnicity could be culturally and linguistically defined as "Latin-American", with the prominent and identifying factor being the Spanish language." Interestingly, the Board of Inquiry held that "while language itself is not a protected ground, it can be considered as one of the many identifying features of 'ethnicity'". Segula also stands for the proposition that language, although not a protected ground of discrimination, is a prime feature in defining ethnicity. In this case, there were two complaints made by the plaintiff. The first involved allegations of sexual harassment and the second involved discrimination based on "ethnicity" or "place of origin". Ms. Segula worked at Ball Packaging Products Inc. from 1970-1988 when she was terminated. From 1982-1988, her boss was a man by the name of Ferrante. From 1984- 1988, Mr. Ferrante made comments during Ms. Segula's performance evaluations to the effect that she had an "accent" and that she spoke "broken English". The Board of Inquiry found that there is not always a correlation between language proficiency and race, ancestry, place of origin or ethnicity, but that it can exist. For instance, where proficiency in a language is not truly required of the job, then this may amount to discrimination. Espinoza and Segula inform us that language, although not a protected or enumerated ground, can and has been used in order to make claims under the Human Rights Code. That being said, these cases arose in the context of work environments where mastery of the English language was not a bona fide occupational requirement. Where, as in the health care field, proficiency and mastery of one of the two official languages is necessary, it is unlikely that someone seeking admittance into the health care field will be able to rely on these cases. On the other hand, from the patient's perspective, these two cases could serve as a precedent for a claim of discrimination against health providers for failure to provide patients with interpreters. The question the courts will have to ask themselves is whether or not interpreter services in the medical profession will amount to "undue hardship" on the health care provider.
(v) a claim for work injury benefits at the WSIB is governed by administrative law
103The entire process, from initial filing to final appeal in WSIB benefits claims, is governed by the principles and procedural fairness of administrative law. In Decision No. 1115/22R, [2024] O.W.S.I.A.T.D. No. 588, 2024 ONWSIAT 624, the Ontario Workplace Safety and Insurance Appeals Tribunal, at paras. 32 to 34, confirmed that decisions made by the WSIB are governed by procedural fairness under modern Canadian administrative law [emphasis is mine below]:
Tribunal counsel noted that procedural fairness is a cornerstone of modern Canadian administrative law. Administrative decision-makers must act fairly when making decisions that affect the rights, privileges, or interests of individuals.
The duty of procedural fairness is generally recognized to consist of two fundamental principles:
-- A party has the right to be heard and know the case that they must meet; and
-- A party has the right to a hearing by an independent, disinterested and unbiased decision-maker.
I agree with the submission of Tribunal counsel that the employer's reconsideration request engages the first fundamental principle of procedural fairness. Parties to an administrative proceeding are entitled to sufficient notice to ensure that they can meaningfully participate in the process.
104Also, in Decision No. 3526/18R, [2020] O.W.S.I.A.T.D. No. 628, the Ontario Workplace Safety and Insurance Appeals Tribunal, at paras. 3 to 8, held that the Tribunal may reconsider its decisions at any time if it considers it advisable to do so and that the Tribunal must find that there is a significant defect in the “administrative process” or content of the decision which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being re-opened
The Workplace Safety and Insurance Act and the Workers' Compensation Act provide that the Appeals Tribunal's decisions shall be final. However, section 129 of the Workplace Safety and Insurance Act and sections 70 and 92 of the Workers' Compensation Act provide that the Tribunal may reconsider its decisions "at any time if it considers it advisable to do so". Because of the need for finality in the appeal process, the Tribunal has developed a high standard of review, or threshold test, which it applies when it is asked to reconsider a decision.
Generally, the Tribunal must find that there is a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being re-opened. The threshold test has been discussed in some detail in Decision Nos. 72R, [1986] O.W.C.A.T.D. No. 323 (1986), 1986 CanLII 623 (ON WSIAT), 18 W.C.A.T.R. 1; 72R2, [1986] O.W.C.A.T.D. No. 386 (1986), 1986 CanLII 226 (ON WSIAT), 18 W.C.A.T.R. 26; 95R, [1989] O.W.C.A.T.D. No. 621 (1989), 1989 CanLII 1835 (ON WSIAT), 11 W.C.A.T.R. 1; and 850/87R, [1990] O.W.C.A.T.D. No. 221 (1990), 1990 CanLII 5009 (ON WSIAT), 14 W.C.A.T.R. 1.
As discussed in Decision No. 871/02R2, [2006] O.W.S.I.A.T.D. No. 2971, one of the fundamental concepts which guides the entire Tribunal process is a duty of fairness. The Tribunal has gone to considerable lengths, in spite of limited resources, to promote a fair process. The threshold test and the role of the reconsideration process must be understood in the context of the Tribunal's processes generally. Most parties have the option of an oral hearing, which is a hearing "de novo" at the Tribunal. This is very unusual at the final level of appeal within any adjudicative system. The Tribunal invests considerable resources in preparing cases for hearing and assisting parties to identify the issues in dispute so that parties can in turn be fully prepared for the hearing. The reconsideration process should not be so generally available that it undermines the important role of the original hearing or the finality of decisions which are reached after a fair hearing process.
Because of limited resources, the Tribunal must also carefully balance its processes to ensure that parties awaiting their first hearing are not penalized because of the expenditure of scarce resources on reconsideration requests.
It is instructive to refer to Decision No. 871/02R2's analysis of the threshold test that a reconsideration request must meet and the reasons for this:
Section 123 of the Workplace Safety and Insurance Act provides that a decision of the Appeals Tribunal under the Act is final. While the Appeals Tribunal does have the discretionary power to reconsider its decision under section 129 of the Act, this remedy is an exceptional one. Because the integrity of the appeal process and the finality of Tribunal decisions are important considerations in any reconsideration application, the standard of review or threshold which must be met in the reconsideration process is a high one. Although some representatives may advise their clients that a reconsideration application is merely a routine step in the WSI appeal process, this advice is wrong. The reconsideration process is a special remedy and the Tribunal's power to reconsider is invoked only in unusual circumstances; it is not intended as a routine process for any party or representative unhappy with a Vice-Chair or Panel decision. To treat reconsiderations as a routine, insignificant process would effectively undermine the statutory principle of finality, suggest that parties could routinely discount the original hearing process, and put successful parties at risk of multiple proceedings. To be successful on a reconsideration application, an applicant must discharge the onus to satisfy the Tribunal that an otherwise final decision should be reopened. Essentially, an applicant must:
(a) demonstrate that there was a fundamental error of law or process which, if corrected, would likely produce a different result, or
(b) introduce substantial new evidence which was not available at the time of the original hearing and which would likely have resulted in a different decision had this substantial evidence been introduced at the original hearing.
Any error and its resulting effects must be sufficiently significant to outweigh the importance of decisions being final and the prejudice to any party of the decision being re-opened. [emphasis in original]
The Divisional Court has reviewed and upheld the Tribunal's reconsideration process in Gowling v. Ontario Workplace Safety and Insurance Appeals Tribunal, [2004] O.J. No. 919 (Div. Ct). In particular, the Court found that:
because a reconsideration is distinct from an appeal, a high threshold test is required to balance the interests of the Tribunal and other parties, and the original adjudicator is in the best position to evaluate the proceedings to address natural justice allegations.
(vi) the right to an interpreter and natural justice
105The right to an interpreter is a fundamental aspect of natural justice. This right ensures that all parties in legal and administrative proceedings can understand and participate in the case, thereby guaranteeing a fair and unbiased hearing. In addition, the right to be heard (audi alteram partem) ensures that all parties must have an adequate opportunity to present their case, respond to evidence, and understand the proceedings against them. Hence, the right to an interpreter is directly linked to the "right to be heard," as a person who does not understand the language of the court cannot meaningfully participate in their own defence or present their case. Denying interpreter assistance can violate a person's right to a fair hearing and potentially invalidate the entire decision-making process. And, the failure to provide a competent interpreter, or a significant lapse in the quality of interpretation, can result in a new hearing or the overturning of a decision, because the procedural fairness of the original process would have been compromised.
(vii) The defendant had used the Google Translate software application to translate the English wording on Form 6 into the Arabic language
106In addition, the defendant had testified that he had used the Google Translate software application to translate the English wording on the Form 6 (Worker’s Report Of Injury Or Illness) document into the Arabic language and then translated his answers from the Arabic language to the English language to complete the Form 6 document in respect to his claim for WSIB benefits for the defendant’s workplace injury. Moreover, the defendant had testified that his wife had also helped him with completing the Form 6 document.
(viii) Did the injured worker unequivocally request an interpreter to be provided by the WSIB?
107The Form 6 (Worker’s Report Of Injury Or Illness) document entered as Exhibit #1 that had been completed by the defendant does not specifically or explicitly state that the defendant had requested an “Arabic” interpreter and only has the typed word “Arabic” under the Heading, “Personal details” on page 1 of the document, in the question box, “Preferred language (include any additional details e.g., dialects or interpreter needs) (Optional)”. The defendant testified that when he wrote in the box the word “Arabic” after the question or heading, “Preferred language (include any additional details e.g., dialects or interpreter needs) (Optional)”, he meant that he was requesting an Arabic interpreter. In addition, the defendant also testified that he did request an Arabic interpreter from both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell, but that they did not provide him with an Arabic interpreter, so he gave up asking them for Arabic interpreter. However, both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell provided credible evidence that they both had no difficulty in communicating with the defendant in the English language and that they both had also testified that the defendant did not formally request an Arabic interpreter during their communications or conversations with the defendant. In addition, both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell prepared memorandums of their conversations with the defendant and neither WSIB Case Manager Kazi nor WSIB Return-To-Work Specialist Kerswell had recorded in their memorandums that the defendant had actually requested an Arabic interpreter, but that they would have noted it in their memorandums if the defendant had indeed requested an Arabic interpreter. Both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell testified that they would prepare their memorandums shortly after they communicated with the defendant and could not change the document once it had been inputted. In addition, since both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell prepared their memorandums shortly after speaking with the defendant, their memory would have been fresher than the defendant’s memory who had testified some 20 months after those conversations were conducted. Furthermore, both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell testified that they would have obtained and provided the defendant with an Arabic interpreter if one had been requested or if they both felt that the defendant needed an Arabic interpreter to communicate with them, since the WSIB has a system set up that an Arabic interpreter can be easily requested and obtained.
108Moreover, in cross-examination when asked about the defendant’s proficiency in the English language on a scale of 1 to 3, with 3 meaning “very good” and 1 meaning “very poor”, both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell testified that the defendant’s proficiency in English was a “3”, meaning “very good”.
109Accordingly, based on the credible testimony of both WSIB Case Manager Kazi and Return-To-Work Specialist Kerswell, the defendant did not unequivocally request an Arabic interpreter and that in the opinion and experience of both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell, the defendant did not need the services of an Arabic interpreter in order to communicate with either WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell and that both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell had no difficulty in communicating with the defendant in the English language.
(ix) Were the WSIB Case Manager’s and WSIB Return-To-Work Specialist’s testimony credible that the injured worker’s communication with them in the English language did not raise any concerns to them that the injured worker had needed an Arabic language interpreter?
110Both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell were credible in their testimony that they both had no difficulty in communicating with the defendant in the English language. In addition, their testimony that they were able to communicate with the defendant in the English language and did not warrant them requesting an Arabic interpreter is also supported by the defendant being able to answer questions using the English language at trial and in his interview with WSIB Investigators Paul Cote and Mike Lagozny on September 12, 2024, in which there had been numerous times and instances that when the defendant had been asked questions in the English language the defendant would immediately answer the question using the English language and not in the Arabic language and without first waiting for the Arabic interpreter to translate the question spoken in the English language to the Arabic language. This showed that the defendant had a relatively good command of the English language and supports the testimony of both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell that they were both able to communicate with the defendant in the English language with no difficulty. Moreover, both WSIB Case Manager Kazi and Return-To-Work Specialist Kerswell had prepared memorandums on the same day or the next day after having a conversation with the defendant when the contents of those conversations were still fresh in both their minds and neither of them had noted that the defendant had requested an Arabic interpreter during their conversations with the defendant, or did they note that they had difficulty in communicating with the defendant in the English language and required the services of an interpreter.
111Moreover, in cross-examination both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell when asked where they would place the defendant’s ability to communicate in the English language on a scale of 1 to 3, with 1 being “very poor” and 3 being “very good”, both testified that the defendant was a “3” on that scale, meaning the defendant’s command of the English language was “very good”.
(x) the defendant’s health professionals are required to note in the medical records of the defendant if an interpreter is required or if one had been used
112From the “Consent to Treatment Policy of March 2025”, online: College of Physicians and Surgeons of Ontario website https://www.cpso.on.ca/physicians/policies-guidance/policies/consent-to-treatment, the College of Physicians and Surgeons of Ontario physicians have provided guidance to physicians on obtaining consent for treatment. In their guidelines, it is noted that physicians must consider and address language and communication issues that may impede a patient’s ability to give valid consent [emphasis is mine below]:
Obtaining Consent
- Physicians must comply with all of the requirements in the HCCA, including obtaining valid consent before treatment is provided.
a. While consent can generally be either express or implied, physicians must obtain express consent in situations where the examination or treatment is:
an intimate examination;
carries appreciable risk;
is a surgical procedure or an invasive investigative procedure; or,
will lead to significant changes in consciousness.
b. A physician proposing treatment may request another health-care provider obtain consent from the patient, but they must be assured that the health-care provider has the knowledge, skill, and judgment required to obtain consent. The physicians involved in the treatment are ultimately responsible for the consent being obtained.
Physicians must engage in a dialogue with the patient or the SDM and answer any questions they may have about the treatment prior to obtaining consent to ensure that the patient’s consent is informed.
If physicians believe that consent is not being freely given, they must take reasonable steps to ensure that there has been no coercion and that the patient is not under duress.
Physicians must consider and address language and communication issues that may impede a patient’s ability to give valid consent.
a. Physicians must use their professional judgment to determine whether it is appropriate to use a patient’s family members or friends as interpreters and only do so where it is in the patient’s best interests.
113And, from the “Advice to the Profession: Medical Records Documentation” (March 2020) guidelines, online: College of Physicians and Surgeons of Ontario website <https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Medical-Records-Documentation>, the College of Physicians and Surgeons of Ontario physicians have provided guidance to physicians on what should be contained in a patient’s medical record:
- Physicians must capture details of the following in each patient medical record:
a. any prescriptions issued in accordance with the College’s Prescribing Drugs policy;
b. consent in accordance with the College’s Consent to Treatment policy and any consent to treatment obtained in writing;
c. all tests requisitioned and referrals made, including a copy of the referral note, and any associated reports and results (e.g., laboratory, diagnostic, pathology);
d. any treatments, investigations, or referrals that have been declined or deferred, the reason, if any, given by the patient, and discussion of the risks;
e. any operative and procedural records; and
f. any discharge summaries.
114Therefore, in Ontario, documenting the use of an interpreter is a crucial component of maintaining high-quality medical records, particularly for ensuring informed consent, patient safety, and adherence to professional standards. The College of Physicians and Surgeons of Ontario emphasize that medical records must be comprehensive, accurate, and, in the case of language barriers, reflect how information was exchanged.
115For the defendant’s medical records contained in Exhibit #28, neither Dr. Taiwo Ajayi nor Dr. Adriana Mechetiuc had noted that in prescribing medication or treatment to the defendant that an interpreter had been used to convey that important medical information to the defendant.
(2) Conclusion On Whether The Defendant Not Being Provided An Arabic Interpreter By The WSIB Would Effectively Negate The Actus Reus Or The Mens Rea For The S. 149(1) Offence Being Committed By The Defendant
116Based on the evidence adduced at trial, the defendant had a relatively good command of the English language when dealing with and having conversations with the WSIB staff and with his health care professionals that had been conducted in the English language without the defendant having the services of an Arabic interpreter. Moreover, the defence’s contention about the defendant’s lack of proficiency in the English language is not convincing or credible considering that neither WSIB Case Manager Kazi nor WSIB Return-To-Work Specialist Kerswell had any concerns with communicating with the defendant in the English language or that the defendant needed the services of an Arabic interpreter. In addition, the defendant’s health professionals did not note or record in the defendant’s medical notes or in any forms submitted to the WSIB that the defendant needed the services of an Arabic interpreter or that the prescriptions and treatment recommended to the defendant had been given by the health professional to the defendant through the assistance of an interpreter, considering that health professionals are legally and ethically required to ensure that their patients understand and agree to the medical treatment recommended by the heath professional. And, as none of the defendant’s health professionals made any note about using the services of an interpreter to convey their instructions in respect to any medical treatment and medication to the defendant, then it can be reasonably inferred that the defendant’s health professionals had no difficulty in communicating with the defendant in the English language.
117Accordingly, the defence contention that the WSIB had failed to provide the defendant with an Arabic interpreter for the defendant’s dealings and communications with WSIB staff and with the defendant’s health professionals because of the defendant’s lack of command of the English language, so as to effectively negate the actus reus or the mens rea for the s. 149(1) offence being committed by the defendant is not convincing nor persuasive. Ergo, the WSIB’s failure to provide the defendant with an Arabic interpreter argument will not negate either the actus reus or the mens rea for the s. 149(1) offence being committed by the defendant nor will it create reasonable doubt about whether the defendant had committed the s. 149(1) offence.
(E) HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD COMMITTED THE ACTUS REUS ELEMENT OF THE S. 149(1) OFFENCE?
118Proof of the actus reus of the offence set out in s. 149(1) requires the prosecution to prove beyond a reasonable doubt that the defendant made a false or misleading statement or representation concerning his functional ability to the WSIB or to his healthcare professionals in connection with the defendant’s claim for benefits under the insurance plan. The prosecution submits that the proof is found in the forms and reports that the defendant submitted to the WSIB and in the communications the defendant had with his WSIB Case Manager and with the WSIB Return-To-Work Specialist and his communications with his health professionals and from the video surveillance of the defendant on February 22, 2024, which shows the defendant performing and engaging in physical activities that had exceeded the physical restrictions and limitations that had been placed, as recent as February 15, 2024, on the defendant by his health professionals.
119The prosecution further contends that this evidence provides the requisite proof that the defendant had portrayed his injury, both to the WSIB and to his healthcare professionals, in a manner that did not accord with fact, or in a manner that gave the wrong impression. In other words, the prosecution contends that the defendant had portrayed himself as unable to engage in certain physical activities due to increased and consistent pain in his elbows when, in reality, the defendant was capable of engaging in vigorous physical activity, which included lifting, gripping, and pushing or pulling in excess of his documented medical limitations or restrictions over an extended period of time. As a result, the prosecution submits that the actus reus of the s. 149(1) offence has been made out.
120On the other hand, the defence submits that the prosecution has failed to establish that the defendant had made a false statement to the WSIB, since the defence contends that the actus reus of the s. 149(1) offence requires proof of an actual false statement or representation and not merely an alleged omission to report activities to the WSIB. In addition, the defence argues that the defendant’s medical reports accurately reflect the defendant’s subjective experience of his condition, which are based on assessments made by licensed medical professionals. Moreover, the defence submits that the defendant had consistently reported pain in both of his elbows, as well as his functional limitations. Furthermore, the defence submits that just because the defendant had attempted physical activity on one occasion does not render his previous or subsequent medical reports false, and the defendant's subjective experience of pain and functional limitation cannot be deemed to be "false" simply because the defendant had engaged in activities on a single day.
121In general, the actus reus of an offence is a positive action engaged in by an accused person. For example, an accused person that has been charged with assaulting another person may be shown to have voluntarily hit the person. On the other hand, the actus reus may also take the form of a failure to act. For example, when an accused person has been charged with failing to stop at the scene of an accident it may be shown that after having been involved in a motor vehicle collision with another driver, the accused person had not stopped their motor vehicle, but instead fled the scene of the accident. And, in some cases, the essential element in establishing the actus reus of the offence is the consequence, or result, that follows the act or omission.
(1) Purpose Of The “Functional Abilities Form”
122The “Functional Abilities Form for Early and Safe Return to Work” provides the WSIB information about a person’s physical condition and their ability to work. The WSIB then utilizes this functional abilities information to help an injured worker plan a safe and suitable return to work. Additionally, the treating health-care professional, either a physician or a physiotherapist, will complete the Functional Abilities Form, which is then provided to the WSIB. In completing the form, the health-care professional will identify the injured person’s ability to walk, stand, sit, lift, and perform other work-related tasks. This information will then help identify jobs that the injured person can perform within the physical, mental, or social limits or restrictions set out in the Functional Abilities Form.
(2) The Evidence Adduced At Trial That Proves That The Defendant Has Committed The Actus Reus Of The S. 149(1) Of The Offence Beyond A Reasonable Doubt
123For the prosecution to prove that the defendant has committed the actus reus of the s. 149(1) offence, the prosecution has to prove beyond a reasonable doubt that the defendant had made representations or statements concerning his level of functional ability or impairment to the WSIB or to his health professionals in connection with his claim for benefits between January 18, 2024 to February 28, 2024; that the defendant’s representations or statements concerning his level of functional ability or impairment made to the WSIB or to his health professionals in connection with his claim for benefits between January 18, 2024 to February 28, 2024, had been false or misleading representations or statements; that the defendant’s false or misleading representations or statements concerning his level of functional ability or impairment made to the WSIB or to his health professionals in connection with his claim for benefits between January 18, 2024 to February 28, 2024, had caused the WSIB to provide or continue to provide loss of earnings, health care, or return-to-work services benefits to the defendant between January 18, 2024 to February 28, 2024.
(A) Did the defendant make representations or statements concerning his level of functional ability or to the severity of his impairment to the WSIB or to his health professionals in connection with his claim for benefits between January 18, 2024 to February 28, 2024?
(i) statements or representations made by the defendant to WSIB staff
124The defendant did directly communicate and provide information about his injury, pain level, level of impairment, and level of functional ability to WSIB Case Manager Kazi and also to Return-To-Work Specialist Kerswell between January 18 to February 28, 2024. In addition, the defendant also made representations and statements to his health professionals concerning his injury, pain level, level of impairment, mental state, and level of functional ability between January 18, 2024 to February 28, 2024.
125From the testimony and memorandums of WSIB Case Manager Sabiha Kazi, WSIB Case Manager Kazi had testified that the defendant had informed and communicated to her on February 5, 2024, that he had difficulty sleeping due to pain (Exhibit #2).
126In addition, WSIB Case Manager Kazi had a telephone conversation with the defendant on February 6, 2024, and she noted that the functional abilities for the defendant had been full abilities for walking, standing, sitting, bending/twisting and the ability to drive, but that lifting and push/pull was very limited to 0 to 5 lbs. and requires ongoing break after 5 minutes, and that the defendant had no ability to operate heavy equipment (see Exhibit #3).
127Furthermore, on February 19, 2024, WSIB Case Manager Kazi also noted that the defendant had possible apprehension and/or avoidance of activity and movement and that the defendant is not improving with treatment and/or symptoms are not well controlled (see Exhibit #2, p.11).
128In addition, WSIB Case Manager Kazi also had a telephone conversation with the defendant on February 23, 2024, in which WSIB Case Manager Kazi noted that the defendant has possible apprehension and/or avoidance of activity or movement, and as for the worker’s health recovery, that the worker is not improving with treatment and/or symptoms not well controlled and that the defendant had reported no changes since their last conversation and no improvements in respect to activities of daily living (see Exhibit #4).
129Moreover, from the testimony and memorandum of WSIB Return-To-Work Specialist Kerswell, WSIB Return-To-Work Specialist Kerswell testified that the defendant had informed and communicated to her on February 23, 2024, that the defendant had full abilities in walking, standing and sitting and bending/ twisting and that lifting was very limited to 2 lbs. but requires ongoing break after 5 minutes and that for push/pull functional ability it was very limited to 2 lbs., but requires ongoing break after 5 minutes, and that the defendant had the ability to drive but could not operate heavy equipment (see Exhibit #15).
(ii) statements or representations made by the defendant to health professionals
130From the medical report dated January 17, 2024 and entitled, “Musculoskeletal (MSK) program of care: Initial assessment report”, which is an initial assessment by Physiotherapist Venkata Devi S.K. Gajula, Physiotherapist Gajula noted that the defendant’s abilities and restrictions for return-to-work planning included full abilities in walking, standing, sitting, stair climbing, ladder climbing, and ability to drive a car and to use public transit, but that the defendant had been unable to do lifting from floor to waist, unable to do lifting from waist to shoulder, and unable to do lifting above shoulder, and that the defendant’s pushing/pulling was limited to 0 to 5 kg. In addition, the Physiotherapist Gajula noted that the defendant’s bending/twisting repetitive movement at bilateral upper extremities, specifically arm and forearm frequency was a constant (67 to 100%) (see Exhibit #5,).
131In addition, from the medical report dated February 14, 2024, and entitled, “Musculoskeletal (MSK) program of care: mid-point report”, authored by physiotherapist Alankrita Srivastava, Physiotherapist Srivastava noted under the heading “Progress to date” that the defendant’s bilateral elbow and forearm pain is still the same as before and that wrist and forearm strength is still the same. In addition, Physiotherapist Srivastava also noted that the “Elbow (post capsule) (L) & (R) lat. Epicondylitis swelling is only minimally improved” and that the defendant is unable to perform his job duties because it’s making his symptoms worst and that the defendant is still not able to do his job related duties and that the estimated time frame for abilities and restrictions is “2 weeks+”. Physiotherapist Srivastava also noted that the defendant’s abilities and restrictions for return-to-work planning included full abilities in walking, standing, sitting, and ability to drive a car and to use public transit, but that the defendant had been limited in lifting from floor to waist from 0 to 5 kg. limited to do lifting from waist to shoulder from 0 to 5 kg. and limited to do lifting above shoulder from 0 to 5 kg., and that the defendant was not ready to do any pushing/pulling. In addition, the physiotherapist noted that the defendant’s bending/twisting repetitive movement at bilateral wrist/forearm frequency was frequent (34 to 66%) (see Exhibit #8).
132Moreover, the WSIB also received information about the defendant’s injury, pain level, level of impairment, and functional ability from the defendant’s family physicians, Dr. Taiwo Ajayi and Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic in the City of Mississauga. This information had been provided in the Functional Ability Form reports that were sent to the WSIB by his family physicians.
133In the February 1, 2024, “Functional Ability Form for Planning Early and Safe Return to Work)”, authored by the defendant’s family physician, Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic, Mississauga, Dr. Mechetiuc noted that the defendant was assessed on February 1, 2024, and that the assessment will apply for approximately 14+ days, and that the defendant is physically unable to return to work at that time and that the defendant is in a lot of pain in his left elbow and cannot lift, pull anything with his left arm and he has started Physiotherapy and non-steroidal anti-inflammatory drugs, and needs more time to see improvement from these treatments (see Exhibit #6).
134In addition, in the February 6, 2024 Functional Ability Form authored by the defendant’s family physician, Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic, Mississauga, Dr. Mechetiuc noted that the defendant was assessed on February 6, 2024 and that the assessment will apply for approximately 14+ days and that the defendant is physically unable to return to work at that time and that the defendant started now to develop pain in the right elbow, similar to the left elbow, and tenderness on the lateral epicondylitis and that the defendant was sent to do X-ray and Ultrasound of his elbow as well and advised to start Physio for this elbow too and continue for the left elbow too (see Exhibit #7).
135Furthermore, in the February 15, 2024, Functional Ability Form authored by the defendant’s family physician, Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic, Mississauga, Dr. Mechetiuc noted that the assessment will apply for approximately 14+ days and that the defendant is physically unable to return to work at that time and with recommended date of next appointment “as needed”. It is also noted Dr. Mechetiuc that the defendant’s X-ray and Ultrasound of this elbow demonstrated epicondylitis and that the defendant started Physio for treated both his elbows and will use elbow brace too (see Exhibit #9).
136Also, in the February 24, 2024, Functional Ability Form authored by the defendant’s family physician, Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic, Mississauga, Dr. Mechetiuc noted that the assessment will apply for approximately 8-14 days and that the patient is physically unable to return to work at that time and with recommended date of next appointment “as needed”. In addition, it is noted that the defendant’s X-ray and Ultrasound of this elbow demonstrated epicondylitis and that he started Physio for both his elbows and will use elbow brace too and that the defendant’s work is a carpenter and cannot do his job if not healed enough to be able to lift, twist, push with his arms. It is also noted by Dr. Mechetiuc that the defendant’s abilities and restrictions included full abilities in walking, standing, sitting, stair climbing, ladder climbing, and the ability to drive a car but less than 10 kilometers and the ability to use public transit, but that the defendant had been limited in lifting from floor to waist up to 5 lbs., limited to do lifting from waist to shoulder up to 5 lbs., and that the defendant was limited in pushing/pulling with his left and right arm and restricted in operating motorized equipment such as a forklift (see Exhibit #10).
137In addition, from Exhibit #28, which are the medical notes in the defendant’s medical file entitled, “Documentation for Saad Sameer Jirjees Alshamas Ashaq”, by family physicians, Dr. Taiwo Ajayi and Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic and dated January 18. 2024, February 1, 2024, February 6, 2024, February 15, 2024, and February 24, 2024, the defendant’s physicians recorded under the heading, “Subjective” what the defendant had communicated to them about his pain and injury. In the February 15, 2024 follow-up, Dr. Mechetiuc had noted that the defendant had started to have shockwave therapy the day before and had an Ultrasound at Physio and cannot lift more than 2 lbs. and that the defendant had ordered his elbow brace the day before and is waiting for it, and that the defendant continues to have pain in both elbows radiating to his fingers and feels numbness, and that for his bilateral elbow epicondylitis the defendant has been prescribed Meloxicam and instructed to apply ice locally and to take 2 more weeks off until assessed by WSIB.
138Ergo, the prosecution has proven beyond a reasonable doubt that the defendant had made numerous representations or statements concerning his level of functional ability or the severity of his impairment to the WSIB or to his health professionals in connection with his claim for benefits between January 18, 2024 to February 28, 2024.
(B) Were the defendant’s representations or statements made between January 18, 2024 to February 28, 2024, concerning his level of functional ability or the severity of his impairment to the WSIB or to his health professionals in connection with his claim for benefits false or misleading?
139The defendant’s representations and statements made to the WSIB and to his health professionals in connection with his claim for benefits had been about the defendant still experiencing severe pain in both elbows so the defendant had been unable to return to work and that there had been no improvement in his level of functional ability or impairment had been false and misleading, since the defendant had been surveilled and observed by a private investigation firm hired by the defendant’s employer, Downsview Woodworking Ltd., engaging in activities that had exceeded the physical limitations and restrictions placed on him by his health professionals from January 18, 2024 to February 28, 2024.
140The defendant had been limited and restricted to pushing/pulling objects weighing between” 0 to 5 kg.” by Physiotherapist Gajula on January 17, 2024. On February 6, 2024, WSIB Case Manager Kazi noted that the defendant had been very limited in lifting and push/pull to “0 to 5 lbs.” and requires ongoing break after 5 minutes. Then, on February 14, 2024, Physiotherapist Srivastava had limited and restricted the defendant lifting activity to between “0 to 5 kg., and that the defendant was not ready to do any pushing/pulling at that time. Then, on February 24, 2024, Dr. Mechetiuc placed limitations and restrictions on the defendant which had restricted the defendant to driving a car for less than 10 kilometers and limited the defendant lifting from floor to waist up to 5 lbs., limited to do lifting from waist to shoulder up to 5 lbs., and that the defendant was limited in pushing/pulling with his left and right arm and restricted in operating motorized equipment such as a forklift.
(i) Video evidence shows substantial improvement in the defendant’s functional abilities and his ability to lift heavy objects and carry objects weighing up to 40 lbs. for approximately 15 minutes without taking a rest break
141The video surveillance of the defendant recorded by Integra Investigation Services Ltd. had been on five separate days: (1) February 15, 2024 from 10:30.01 A.M. to 11:16: 23 A.M.; (2) February 20, 2024 from 2:43:23 P.M. to 9:20:53 P.M.; (3) February 21, 2024 from 7:02:37 A.M. to 7:53:50 A.M.; (4) February 22, 2024 from 8:45:27 A.M. to 3:46:02 P.M.; (5) February 23, 2024 from 8:41:41 A.M. to 11:09:05 A.M.; and (6) Monday, February 26, 2024 from 9:12:20 A.M. to 3:47:15 P.M. (see Exhibit #17).
142From the surveillance report by Integra Investigation Services Ltd. dated Friday, March 1, 2024 and authored by President Don Colbourn and addressed to the attention of Tania D’Uva of Downsview Kitchens, 2635 Rena Road, Mississauga in respect to the investigation of the defendant to determine if the defendant is working at Double AA Woodworking Ltd. in which surveillance spot checks were conducted on February 10, 12, 13, 15, 16, 20, 21, 22, 23, and 26 of 2024 and the report indicates that the defendant had been observed attending Double AA Woodworking Ltd. located at 83 Nugget Court, Brampton on February 15, 22, 23 and 26 of 2024. In addition, the report indicates that on February 22, 2024, the defendant had been surveilled and observed driving a Double AA Woodworking Ltd. truck from 83 Nugget Court, Brampton to 258B Sunview Street in Waterloo, Ontario, where the defendant had met another male and both unloaded cabinets and other materials, including tool bags, from the truck into the building. In addition, the defendant had also been observed using both arms to lift cabinets and other items of varying weights out of the truck into the building and stepped up and into and down from the truck with no apparent difficulty and that his movements were swift and fluid with no apparent signs of restriction or difficulty. Then on February 26, 2024, the defendant had been observed using a key to unlock the front door of Double AA Woodworking Ltd. located at 83 Nugget Court, Brampton and had gone back and forth multiple times between Double AA Woodworking Ltd. and another unit in the same building and had used a key to unlock the second unit and had locked the door behind him each time he had entered. Furthermore, the defendant had been observed on February 15, 2024, attending Dundas Medical Clinic and then afterwards immediately drove to Double AA Woodworking Ltd. located at 83 Nugget Court, Brampton (see Exhibit #18).
143The videotape surveillance in Exhibit #18 of the defendant on February 22, 2024, shows the defendant driving a motor vehicle independently and continuously from the Double AA Woodworking Ltd. premises in the City of Brampton to the City of Waterloo which is approximately 91 kms. in distance. That same video surveillance also shows the defendant lifting and carrying objects weighing up to 40 lbs. for approximately 15 minutes without taking a rest break, despite the defendant’s health professionals limiting and restricting his lifting of objects to weigh less than 5 kg. (or 11.0231 lbs.) with a rest break after 5 minutes. Then, two days after the defendant had driven the Double AA Woodworking Ltd. truck by himself from the City of Brampton to the City of Waterloo, Dr. Mechetiuc on February 24, 2024, had restricted and limited the defendant’s continuous driving of a motor vehicle to be not more than 10 kms. Then on February 26, 2024, the defendant is surveilled and observed locking and unlocking the door at the Double AA Woodworking Ltd. premises in the City of Brampton, which is located 19.6 kms. from his residence located in the City of Mississauga.
144Once again, the surveillance of the defendant between February 10, 2024 and February 26, 2024, and the surveillance video of February 22, 2024 and February 26, 2024, shows that the defendant had the functional ability to continuously drive a motor vehicle for more than 10 kms., and as such, would exceed the defendant’s medical restrictions and limitations of continuously driving a motor vehicle to not exceed 10 kms. as noted by Dr. Adriana Mechetiuc, on February 24, 2024. Hence, any representation or statement made by the defendant on February 23, 2024, to WSIB Case Manager Kazi and to WSIB Return-To-Work Specialist Melissa Kerswell, especially about not being able to return to work because of not being able to return to work because of having no improvement in his functional ability would be a misrepresentation in light of the surveillance video taken on February 22, 2024 showing the defendant had the ability to independently lift and carry objects weighing 40 lbs. for 15 minutes without taking a rest break.
145This, therefore, is evidence that the defendant had been misrepresenting his level of functional ability and the severity of his impairment to the WSIB and to his health professionals between January 18, 2024 to February 28, 2024.
(a) Videotape surveillance of the defendant shows the defendant had been engaged in activities that exceeded his health professionals’ limitations and restrictions on lifting objects and driving a motor vehicle, and that the defendant and the defendant’s Subaru motor vehicle had been observed driving to and being parked at or near the premises of Double AA Woodworking Ltd. on several days in February of 2024
146From the testimony of and memorandums prepared by WSIB Case Manager Kazi, the defendant had informed WSIB Case Manager Kazi that he stayed home because of his pain.
147Moreover, the defendant or the defendant’s Subaru motor vehicle had been surveilled and observed driving from his residence located at [address removed for privacy], Mississauga to the Double AA Woodworking Ltd. premises located at 83 Nugget Court, Brampton or that the defendant’s Subaru motor vehicle had been observed parked at or near 83 Nugget Court, Brampton, which is about 19.6 kms. in distance via Highway 410 North and about 27 minutes of continuous driving from the defendant’s residence in the City of Mississauga. This occurred on February 15, 22, 23 and 26 of 2024.
148The evidence at trial (see Exhibits #17 and #18) indicates that the defendant had been surveilled driving his motor vehicle from his residence to Double AA Woodworking Ltd. or that the defendant’s motor vehicle had been observed parked in the vicinity of the Double AA Woodworking Ltd. premises which is approximately 19.6 kms. from the defendant’s residence. Moreover, on February 22, 2024, the defendant had been observed driving by himself from the Double AA Woodworking Ltd. premises located in Brampton to the dental office in the City of Waterloo, which is approximately 91 kms. via Highway 401 and takes approximately one hour and 3 minutes to drive.
149Once again, the surveillance of the defendant between February 10, 2024 and February 26, 2024, and the surveillance video of February 22, 2024 and February 26, 2024, shows that the defendant had the functional ability to continuously drive a motor vehicle for than 10 kms, and as such, would exceed the defendant’s medical restrictions and limitations of continuously driving a motor vehicle to not exceed 10 kms. as noted by Dr. Adriana Mechetiuc, on February 24, 2024. Hence, any representation or statement made by the defendant on February 23, 2024, to WSIB Case Manager Kazi and to WSIB Return-To-Work Specialist Melissa Kerswell, especially about not being able to return to work because of having no improvement in his functional ability or impairment would be a misrepresentation in light of the surveillance video taken on February 22, 2024 showing the defendant had the ability to independently lift and carry objects weighing 40 lbs. for 15 minutes.
150This is further evidence that the defendant had been misrepresenting his level of functional ability and the severity of his impairment to the WSIB and to his health professionals between January 18, 2024 to February 28, 2024.
(b) the videotape evidence showing the defendant’s physical activities on February 22, 2024 contradicts the defendant’s statements to the WSIB and to his health professionals that his level of functional ability and impairment had not improved with treatment and that the defendant had been unable to return to work
151The videotape evidence entered as Exhibit #10, undoubtedly shows the defendant lifting and carrying desks and cabinets weighing approximately 40 lbs. on February 22, 2024 for about 15 minutes without taking a rest break, after the defendant had driven a Double AA Woodworking Ltd. truck by himself from Brampton to the City of Waterloo, which is approximately 91 kilometers in distance. In addition, the defendant had been surveilled and observed locking and unlocking the door to the Double AA Woodworking Ltd. premises on February 26, 2024, in the City of Brampton which is 19. 6 kms. from his residence in the City of Mississauga. This level of functional ability demonstrated by the defendant on February 22, 2024 contradicts his statements and communication to the WSIB and his communication with his health professionals in which their medical reports provided to the WSIB had indicated that the defendant had been unable to return to work from January 18, 2024 to February 28, 2024, because the defendant had been unable to do any lifting of objects of more than 5 kilograms (approximately 11 pounds) without a rest break after 5 minutes and that the defendant had been limited and restricted in driving a motor vehicle continuously for more than 10 kilometers by Dr. Mechetiuc on February 24, 2024. In addition, the defendant had been under surveillance by a private investigation firm hired by the defendant’s employer and that the defendant or the defendant’s motor vehicle had been observed driving to or parked at the Double AA Woodworking Ltd. parking lot or in the area of their premises located at 83 Nugget Court in Brampton on February 15, 22, 23, and 26 in 2024 for several hours.
152Once again, the surveillance of the defendant between February 10, 2024 and February 26, 2024, and the surveillance video of February 22, 2024 and February 26, 2024, shows that the defendant had the functional ability to continuously drive a motor vehicle for more than 10 kms, and as such, would exceed the defendant’s medical restrictions and limitations of continuously driving a motor vehicle to not exceed 10 kms. as directed by Dr. Adriana Mechetiuc, on February 24, 2024. Hence, any representation or statement made by the defendant on February 23, 2024, to WSIB Case Manager Kazi and to WSIB Return-To-Work Specialist Melissa Kerswell, especially about not being able to return to work because of having no improvement in his functional ability would be false or misleading statement or representation in light of the surveillance video taken on February 22, 2024, showing the defendant had the capability and ability to independently lift and carry objects weighing 40 lbs. for 15 minutes without taking a rest break after 5 minutes.
153This further is evidence that the defendant had been misrepresenting his level of functional ability and the severity of his impairment to the WSIB and to his health professionals between January 18, 2024 to February 28, 2024.
(ii) Dr. Krievens’ expert medical opinion indicated that the defendant’s activities captured on surveillance video and outlined in the surveillance report did not align with the medical reports submitted to the WSIB
154Moreover, from the medical assessment report from the medical expert, Dr. Matthew Krievens, entered as Exhibit #21, Dr. Krievens had concluded, after reviewing the WSIB medical reports in respect to the defendant and the video recording of the defendant time-stamped of February 22, 2024, of the defendant independently lifting and carrying desks and cabinetry for about 15 minutes without showing signs of discomfort or distress, that these observed functional activities of the defendant are inconsistent with the physical restrictions and limitations documented in the provided medical records.
155Dr. Matthew Krievens further concluded that the activities of the defendant captured on the video surveillance are not consistent with the medical assessments of the defendant’s functional abilities and restrictions noted by the defendant’s health professionals.
156Thus, Dr. Krievens’ expert opinion is also persuasive evidence that the defendant had been misrepresenting his level of functional ability and the severity of his impairment to the WSIB and to his health professionals between January 18, 2024 to February 28, 2024.
(iii) medical records consist of the subjective description by the defendant of the physical health conditions complained about and the objective evidence of the defendant’s medical condition revealed by the physician’s examination and by medical tests
157Also from Exhibit #28, which are the medical notes in the defendant’s medical file entitled, “Documentation for Saad Sameer Jirjees Alshamas Ashaq”, by family physicians, Dr. Taiwo Ajayi and Dr. Adriana Mechetiuc, of 400 Dundas Medical Clinic and dated January 18. 2024, February 1, 2024, February 6, 2024, February 15, 2024, and February 24, 2024, the defendant’s physicians recorded under the heading, “Subjective”, what the defendant had communicated to them about his pain and injury. In the February 15, 2024 follow-up, Dr. Mechetiuc had noted that the defendant had started to have shockwave therapy the day before and had an Ultrasound at Physio and cannot lift more than 2 lbs. and that the defendant had ordered his elbow brace the day before and is waiting for it, and that the defendant continues to have pain in both elbows radiating to his fingers and feels numbness, and that for his bilateral elbow epicondylitis the defendant has been prescribed Meloxicam and instructed to apply ice locally and to take 2 more weeks off until assessed by WSIB.
158However, as indicated in the notes in the medical assessments of the defendant’s family physician entered as Exhibit #28, Dr. Taiwo Ajayi on February 9, 2024, at p. 6, noted that the patient complains of severe pain in the right elbow and being forced to return to work despite inability to lift 5-10 lbs. communicated by the defendant is “subjective” and that the “objective” evidence from the ultrasound, on the other hand, shows that it had been diagnosed as a “mild lateral epicondylitis” with no joint effusion [emphasis is mine below]:
[09-Feb-2024 : ]
Subjective:
Complaints of severe pain in the right elbow
History of MRI discussion with Dr. Adrian
Weekly treatment plan approved by W IV
Forced to return to work despite inability to lift 5-10 lbs
Numbness in fingers reported
Concerns about worsening health condition
Request for results of recent ultrasound and X-ray for right elbow
Objective:
No fracture or joint effusion observed in right elbow X-ray
No surrounding tissue calcification from X-ray
Ultrasound shows mild lateral epicondylitis
Common extensor tendon is thick and hypoechoic [Hypoechoic describes an area on an ultrasound scan that appears darker than the surrounding tissue because it reflects fewer sound waves. This typically indicates a dense, solid, or cellular structure, such as a tumor, nodule, or mass.]
No joint effusion [joint effusion, commonly known as "water on the knee" or swollen joint, is the abnormal accumulation of excess fluid in or around a joint, such as the knee, hip, or elbow. It signifies inflammation or injury, resulting in visible swelling, stiffness, and pain.] or Elepano Bursitis observed
Ulnar nerve is normally calibrated
Assessment:
Mild lateral epicondylitis
Inflammation of one of the bones (epicondyle)
Numbness in fingers
Severe pain in right elbow
Plan:
Follow up with Dr. Umm and Dr. Adriana to discuss X-ray and ultrasound results
Avoid heavy lifting and strenuous activities
Continue with approved weekly treatment plan
Monitor numbness in fingers and report any changes
Use prescribed cream for pain relief
Await MRI results for further assessment and treatment planning
A007A
Q012A
[Signed on 09-Feb-2024 18:50 by Taiwo Ajayi]
159For recording medical notes, physicians have been advised to note the patient’s “subjective” description of the physical health conditions complained about and the “objective” evidence revealed by the physician’s examination and by medical tests. According to the recommended method of documenting a patient encounter provided to physicians in Ontario by the College of Physicians and Surgeons of Ontario is the “Subjective Objective Assessment Plan (SOAP)” contained in the document entitled, “Advice to the Profession: Medical Records Documentation (March 2020)”, from the online College of Physicians and Surgeons of Ontario website <https://www.cpso.on.ca/physicians/policies-guidance/policies/medical-records-documentation/advice-to-the-profession-medical-records-documentation> [emphasis is mine below]:
Subjective Objective Assessment Plan (SOAP)
What method is recommended for documenting patient encounters?
One of the most widely recommended methods for documenting a patient encounter is the Subjective Objective Assessment Plan (SOAP) format. The SOAP format is a structured method for documenting the patient encounter. While other documentation methods are acceptable, using this format can help ensure the obligations set out in the Medical Records Documentation policy are satisfied. Considerations for aspects of care that would be captured by each element of SOAP are set out below.
Subjective Data: The subjective elements of the patient encounter are those which are expressed by the patient (e.g., patient reports of nausea, pain, tingling). This includes the following, where applicable:
Presenting complaint and associated functional inquiry, including the severity and duration of symptoms;
Whether this is a new concern or an ongoing/recurring problem;
Changes in the patient’s progress or health status since the last visit;
Review of medications, if appropriate;
Review of allergies, if applicable;
Past medical history of the patient and their family, where relevant to the presenting problem;
Patient risk factors, if appropriate;
Salient negative responses.
Objective Data: Objective data are the measurable elements of the patient encounter and any relevant physical findings from the patient exam or tests previously conducted are documented in this section. This includes the following, where applicable:
Physical examination appropriate to the presenting complaint;
Positive physical findings;
Significant negative physical findings as they relate to the problem;
Relevant vital signs;
Review of consultation reports, if available;
Review of laboratory and procedure results, if available.
Assessment: The assessment is the physician’s impression of the patient’s health issue. This includes the following, where applicable:
- Diagnosis and/or differential diagnosis.
Plan: The physician’s plan for managing the patient’s condition includes the following, where applicable:
Discussion of management options;
Details of consent, in accordance with the College’s Consent to Treatment policy;
Tests or procedures ordered and explanation of significant complications, if relevant;
Consultation requests including the reason for the referral, if relevant;
New medications ordered and/or prescription repeats including dosage, frequency, duration and an explanation of potentially serious adverse effects;
Any other patient advice or patient education (e.g., diet or exercise instructions, contraceptive advice);
Follow-up and future considerations;
Specific concerns regarding the patient, including any decision by the patient not to follow the physician’s recommendations.
160Ergo, the defendant’s health professionals are required to record in the medical notes for the defendant, the “subjective” view expressed by the defendant of his health complaint and the “objective” data in respect to the defendant’s health complaint, which would consist of the measurable elements of the physician’s encounter with the defendant and any relevant physical findings from the defendant’s exam or tests. Thus, the “objective” data in the defendant’s medical notes about the defendant’s health complaint made to his health professionals may be more reliable that what the defendant has “subjectively” told to his health professional.
(iv) defendant’s oral statement to WSIB Investigators Paul Cote and Mike Lagozny on September 12, 2024
161On September 12, 2024, the defendant met with WSIB Investigators Paul Cote and Mike Lagozny. The defendant's oral statement to WSIB Investigators Paul Cote and Mike Lagozny on September 12, 2024, had been entered as Exhibit #19, while the transcript of the defendant's statement had been entered as Exhibit #20. It should be pointed out that some of the suggestions made by WSIB Investigator Paul Cote to the defendant in the transcript of the September 12, 2024, interview have not been proven and are not admissible for their truth and are only being considered to prove that the defendant had spent many hours and days at the Double AA Woodworking Ltd. premises while collecting WSIB benefits. In particular, any comments about what the defendant’s friend, Sam, had told WSIB Investigator Cote and commented on by WSIB Investigator Cote in the transcript would be hearsay and not admissible for its truth. Specifically, at p. 40 of the transcript of the interview between WSIB Investigators Paul Cote and Mike Lagozny and the defendant, who had the assistance of an Arabic interpreter (Exhibit #20), the defendant had responded to questions from WSIB Investigator Paul Cote about being observed working on a machine at Double AA Woodworking Ltd. and had answered that he had not been working there, but had been only visiting his friend Sam. And, at pp. 55 and 56 of the transcript of the interview, the defendant had answered that he did not take any payments from Sam nor did he work there and that he would only sit there, when WSIB Investigator Cote had questioned and informed the defendant that Sam had told WSIB Investigator Cote that the defendant did work for Sam and that the defendant had started in January or February for almost every day of the week and that Sam would pay the defendant when Sam got paid by Sam’s clients:
Page 40
24 SAAD: (Speaks in Arabic.)
25 INTERPRETER: I did not work.
26 SAAD: (Speaks in Arabic.)
27 INTERPRETER: I just want to make this clear.
28 SAAD: (Speaks in Arabic.)
29 INTERPRETER: I did not work for him.
30 COTE: What were you doing the day I walked in …
31 SAAD: Ah, yeah.
Page 41
1 COTE: … and said that …
2 SAAD: I will, I will explain to you. (Speaks in Arabic.)
3 INTERPRETER: I’ll give you a-, as an example. Like if I go to him for six
hours.
4 SAAD: (Speaks in Arabic.)
5 INTERPRETER: One out of…
6 SAAD: (Speaks in Arabic.)
7 INTERPRETER: … one, one out of the six hours, I would help him. But
8 the rest of the time, I will stop…
9 SAAD: (Speaks in Arabic.)
10 INTERPRETER: …and hang out with him in the…
11 SAAD: (Speaks in Arabic.)
12 INTERPRETER: …in the office.
13 SAAD: (Speaks in Arabic.)
14 INTERPRETER: And we go to Tim Hortons. We would do…
15 SAAD: (Speaks in Arabic.)
16 00:59
17 INTERPRETER: And, uh, according to my experience, sometimes,
like…
18 SAAD: (Speaks in Arabic.)
19 INTERPRETER: But I did not work for six-hour, uh, t get paid. Even for
20 the hour, he did not pay.
21 COTE: So, when we walked in and saw you there that day, that
22 was just a, just a coincidence that you happen to be
working on the machine?
23 INTERPRETER: (Speaks in Arabic.)
24 SAAD: (Speaks in Arabic.)
25 INTERPRETER: I was helping him…
26 SAAD: (Speaks in Arabic.)
27 INTERPRETER: I was…
28 (Dialogue between Interpreter and Saad Samir-Girgis
29 Alshammas Ashaq in Arabic.)
30 INTERPRETER: I was visiting him.
31 SAAD: (Speaks in Arabic.)
Page 42
1 INTERPRETER: I was just, uh, you know, visiting him, and I was, uh, at
2 that time, I was helping him with, uh, cutting, uh, some
sheets.
3 01:00
Page 55
1 01:19
2 COTE: Okay. When did you first start going to help Sam at his
workplace?
3 SAAD: I go often, like, uh, sometimes, uh, like three times, four
times a week.
4 COTE: I’m talking, I’m asking what date. When did you first
start helping him?
5 INTERPRETER: (Speaks in Arabic.)
6 SAAD: (Speaks in Arabic.)
7 INTERPRETER: From January.
8 COTE: How many days a week would you go?
9 INTERPRETER: (Speaks in Arabic.)
10 SAAD: (Speaks in Arabic.)
11 INTERPRETER: Sometimes three, three times a week. (Speaks in
Arabic.)
12 SAAD: (Speaks in Arabic.)
13 INTERPRETER: Sometimes four.
14 SAAD: (Speaks in Arabic.)
15 INTERPRETER: Or I would go for the whole week but just to sit. He
16 doesn’t, he himself doesn’t even have, uh, much work.
17 01:20
18 (Dialogue between Interpreter and Saad Samir-Girgis
19 Alshammas Ashaq in Arabic.)
20 INTERPRETER: Sometimes he doesn’t have the money to pay for his
rent.
21 SAAD: (Speaks in Arabic.)
22 INTERPRETER: It’s out of love and kindness, uh, between us that we
help each other.
23 COTE: He told us that you were there starting in January or
24 February, um, almost every day of the week, and that
25 he, you, you did work for him, and that he would pay
you when he got paid from his clients.
26 INTERPRETER: (Speaks in Arabic.)
27 SAAD: (Speaks in Arabic.)
28 01:21
29 INTERPRETER: No. I said, like, uh, maybe after a couple of months
30 and, uh, if I have, uh, a need, uh, that I need to pay for
something, I would get a loan from him.
31 SAAD: (Speaks in Arabic.)
Page 56
2 INTERPRETER: I don’t take a payment, any payments from him. Uh…
162Ergo, when the defendant had been surveilled and observed driving to Double AA Woodworking Ltd., as well as the defendant’s Subaru motor vehicle being observed in the vicinity of the Double AA Woodworking Ltd. premises on several days in February of 2024, and the defendant being observed spending many hours at that location and locking and unlocking doors of the Double AA Woodworking Ltd. premises on February 26, 2024, certainly gives credence to WSIB Investigator Paul Cote’s comments to the defendant on September 12, 2024, about working there and contradicts the defendant’s representations or statements to WSIB Case Manager Kazi that the defendant had seen minimal improvements, had experienced numbness in his fingers, had found it difficult to complete daily activities of daily living at home, such as vacuuming and had also reported that he would “stay home all day and rest”, and had also reported having difficulty with lifting and holding a telephone for more than 30 seconds and so did not do any lifting at home. And, just 3 days before the defendant was videotaped on February 22, 2024, in the City of Waterloo carrying and lifting objects weighing up to 40 lbs. for 15 minutes without taking a rest break, the defendant had informed WSIB Case Manager Kazi on February 19, 2024, that the defendant was not improving with treatment and/or symptoms were not well controlled. Then on February 23, 2024, one day after the defendant had been surveilled and videotaped engaging in the strenuous physical activity of carrying and lifting objects weighing up to 40 lbs., the defendant had informed WSIB Case Manager Kazi that for the defendant’s health recovery the defendant had not been improving with treatment and/or symptoms are not well controlled, and that the defendant had reported no changes since their last conversation and no improvements in respect to activities of daily living
163This is also evidence that the defendant had been misrepresenting his level of functional ability and the severity of his impairment to the WSIB and to his health professionals between January 18, 2024 to February 28, 2024.
(v) Medical report by Dr. Deep Chatha dated February 7, 2024, entered as Exhibit #14, had concluded that the defendant had “Mild lateral epicondylitis”.
164Furthermore, from the defendant’s medical report dated February 7, 2024, and entitled, “Elbow (3/4) Musculoskeletal”, authored by Dr. Deep Chatha, who had reviewed the right elbow x-ray, had noted that the x-ray had revealed that, “There is no acute fracture, joint effusion or olecranon bursitis”; that, “The joint spaces are well-preserved with no productive or erosive disease”; and that, “There are no surrounding soft tissue calcifications”; and as such, Dr. Chatha concluded that there is “No bony injury or arthritic changes”. As for the right elbow ultrasound, Dr. Deep Chatha said that the ultrasound had indicated that, “The footplate of the common extensor tendon is thickened and hypoechoic over region measured 0.6 x 0.4 cm and is in keeping with epicondylitis; that, “The common flexor tendon footplate is normal”; that, “The biceps and triceps tendon insertions are intact; that, “There is no joint effusion or olecranon bursitis; and that the “ulnar nerve is normal in caliber”; and as such, Dr. Deep Chatha had concluded that it is “Mild lateral epicondylitis” (see Exhibit #14). Therefore, Dr. Chatha’s diagnosis that the defendant’s epicondylitis as of February 7, 2024, was mild and not severe or major, further infers that the defendant had misrepresenting his level of functional ability and the severity of his impairment to the WSIB and to his health professionals from January 18, 2024 to February 28, 2024.
(vi) The defendant’s representations and statements to the WSIB and to his health professionals concerning his functional ability or the severity of his impairment from January 18, 2024 to February 28, 2024 in connection with his claim for benefits were false and misleading
165Therefore, the prosecution has proven beyond a reasonable doubt that defendant’s representations or statements made between January 18, 2024 to February 28, 2024, concerning his level of functional ability or the severity of his impairment to the WSIB or to his health professionals in connection with his claim for benefits had been false or misleading.
(C) Did the defendant’s false or misleading representations or statements concerning his level of functional ability or the severity of his impairment made between January 18, 2024 to February 28, 2024, to the WSIB or his health professionals in connection with his claim for benefits cause the WSIB to provide or continue to provide benefits to the defendant between January 18, 2024 to February 28, 2024?
166The defendant had received loss or earnings, health care, and return-to-work services benefits from January 16, 2024 to May 27, 2024, that had been based on the defendant’s claim for benefits, the defendant’s conversations with WSIB Case Manager Kazi, and the medical reports submitted by the defendant’s health professionals. It had not been until the surveillance video of February 22, 2024 of the defendant engaging in activities that exceeded his medical limitations and restrictions and the surveillance report of the defendant had been forwarded to the WSIB by the defendant’s employer, Downsview Woodworking Ltd., on March 19, 2024, did the WSIB review the defendant’s entitlement to WSIB benefits. The WSIB then determined that the defendant had not been entitled to receive WSIB benefits due to the defendant potentially completing work activities for another company and that the defendant had been observed carrying equipment/tools into a building and seen driving on multiple occasions, and that the defendant had the functional abilities permitting him to return to work, and that because he had been potentially working elsewhere, the WSIB Case Manager found that the defendant had misrepresented his level of impairment (see Exhibit #1), and then by letter dated June 18, 2024, had informed the defendant of their decision. In addition, the defendant had been informed of the requirement to repay to the WSIB the amount of $12,753.89, which had been the loss of earnings benefit that had been overpaid to the defendant.
167Ergo, the prosecution has proven beyond a reasonable doubt that defendant’s false or misleading representations or statements made between January 18, 2024 to February 28, 2024, concerning his level of functional ability or the severity of his impairment to the WSIB or to his health professionals in connection with his claim for benefits had caused the WSIB to provide or continue to provide benefits to the defendant between January 18, 2024 to February 28, 2024.
(D) Conclusion on whether the prosecution has proven beyond a reasonable doubt that the defendant had committed the actus reus of the s. 149(1) offence
168The prosecution has proven beyond a reasonable doubt that there had been a substantial improvement in the defendant’s functional abilities by the defendant being able to lift and carry objects weighing up to 40 lbs. over a period of 15 minutes without taking a rest break after 5 minutes on February 22, 2024, and driving a motor vehicle independently for more than 10 kms. on February 22, 2024 and February 26, 2024. Furthermore, the video surveillance and surveillance report of the defendant between February 10, 2024 and February 26, 2024, also showed the defendant or the defendant’s Subaru motor vehicle being driven from his residence to the Double AA Woodworking Ltd. premises or the defendant’s Subaru motor vehicle being parked at or near the Double AA Woodworking Ltd. premises located at 83 Nugget Court, Brampton, on February 15, 22, 23 and 26 of 2024, which is further evidence of the defendant’s substantial improvement in his functional abilities. Consequently, when the defendant had communicated to his health professionals and to the WSIB that there had been no improvement in his condition or functional abilities and that he could not return to work because there had been no improvement in his functional abilities, then this communication would be a misrepresentation of his actual functional ability and the severity of his impairment.
169The surveillance report and the surveillance video of the defendant showed the defendant on February 10, 12, 13, 15, 16, 20, 21, 22, 23, and 26 of 2024, engaging in activities outside his residence and which had exceeded the medical and physical limitations and restrictions that had been placed on him. This misrepresentation about the lack of improvement in his functional abilities and his level of impairment had been directly related to the defendant’s entitlement to continue to receive WSIB loss of earnings, health care, and return-to-work services benefits.
170Ergo, the prosecution has proven beyond a reasonable doubt that the defendant had made false or misleading statements or representations to the WSIB or to his health professionals between January 18, 2024 and February 26, 2024, in the City of Mississauga. Specifically, this proof is contained in the February 15, 2024, follow-up with Dr. Mechetiuc, Dr. Mechetiuc had noted in his medical notes (see Exhibit #28) that the defendant had started yesterday to have shockwave therapy and Ultrasound at Physio and “cannot lift more than 2 lbs.” and that the defendant had ordered his elbow brace yesterday and is waiting for it, and that the defendant continues to have pain in both elbows radiating to his fingers and feels numbness, and that for his bilateral elbow epicondylitis the defendant has been prescribed Meloxicam and instructed to apply ice locally and “to take 2 more weeks off until assessed by WSIB” (see Exhibit #28). In addition, in the Functional Ability Form dated February 15, 2024 (see Exhibit #9), Dr. Mechetiuc had also noted that the defendant had been physically unable to return to work at that time. Hence, according to Dr. Mechetiuc medical instructions to the defendant, the defendant could not return to work until the defendant had been assessed by the WSIB, which is about February 29, 2024. However, the defendant had been captured on surveillance video driving a truck by himself from the City of Brampton to the City of Waterloo (which is more than 10 kms.) and carrying and lifting objects weighing between 6 to 40 lbs. for about 15 minutes without taking a rest break on February 22, 2024 (see Exhibits #17 and #18), despite Dr. Mechetiuc’s note that the defendant continued to have pain in both elbows radiating to his fingers and feels numbness and that the defendant could not lift more than 2 lbs. as of February 15, 2024. Furthermore, from the defendant’s communication with WSIB Case Manager Kazi on February 23, 2024, which is one day after the defendant had engaged in strenuous physical activities that had exceeded his medical limitations and restrictions that had been captured on surveillance video, WSIB Case Manager Kazi had noted in her memorandum (see Exhibit #4) that the defendant has possible apprehension and/or avoidance of activity or movement, and as for the worker’s health recovery that the defendant is not improving with treatment and/or symptoms are not well controlled, and that the defendant had reported no changes since their last conversation and no improvements in respect to activities of daily living. However, the defendant’s physical activities on February 22, 2024, contradicts what he had communicated to WSIB Case Manager Kazi on February 23, 2024 about his level of functional ability and that the defendant had no improvements in respect to activities of daily living. The defendant, therefore, made false or misleading statements or representations to the WSIB about his level of functional ability and the severity of his impairment, and the February 22, 2024, surveillance video of his strenuous physical activities show that the defendant could have returned to work. Then on his next medical appointment with Dr. Mechetiuc on February 24, 2024, which is two days after the defendant is videotaped carrying and lifting objects weighing between 6 to 40 lbs. for about 15 minutes, Dr. Mechetiuc notes in the Functional Ability Form (see Exhibit #10) that the defendant had been physically unable to return to work at that time and the defendant’s abilities and restrictions included full abilities in walking, standing, sitting, stair climbing, ladder climbing, using public transit, and driving a car but less than 10 kilometers. However, Dr. Mechetiuc noted that the defendant had been limited in lifting from floor to waist up to 5 lbs., limited to do lifting from waist to shoulder up to 5 lbs., and that the defendant was also limited in pushing/pulling with his left and right arm and restricted in operating motorized equipment such as a forklift.
171In addition, the expert medical opinion of Dr. Krievens, who examined the surveillance video of the defendant engaging in physical activities and the defendant’s medical reports prepared by the defendant’s health professionals, had concluded that the defendant’s physical activities did not align with the defendant’s medical reports (see Exhibit #21) and that the defendant did not show visible signs of discomfort or compensatory movements while performing these tasks also raises questions regarding the consistency of reported functional limitations on file. Ergo, Dr. Krievens’ expert medical opinion also supports the prosecution’s contention that the defendant had made false or misleading statements or representations to the WSIB and to his health professionals about his level of functional ability or physical limitations between January 18, 2024 and February 26, 2024.
172Consequently, the defendant had communicated and misrepresented to the WSIB staff and to his health professionals about having no improvement in his level of functional ability or impairment and that the defendant had also misrepresented to the WSIB of being unable to return to work to do his pre-injury duties from January 18, 2024 to February 28, 2024. The defendant’s representations and statements concerning his functional ability to the WSIB staff and to his health professionals have been contradicted by the defendant’s activities that had been captured on surveillance video on February 22, 2024, which shows the defendant lifting desks and cabinets weighing up to approximately 40 lbs. for about 15 minutes without taking a rest break. Also, observations of the defendant from February 10, 2024 to February 26 2024, and the surveillance video shows the defendant being able to drive a motor vehicle by himself for more than 10 kilometers on February 22, 2024 and February 26, 2024, despite the defendant being restricted and limited by Dr. Mechetiuc on February 24, 2024, to not drive continuously for more than 10 kilometers. The defendant’s physical activities that had been observed and videotaped on February 22, 2024, and the defendant’s driving for more than 10 kms., and his attendance for several hours at Double AA Woodworking Ltd. for several days from February 10, 2024 to February 26, 2024, shows that the defendant had been capable and able to return to work, and that his representations and statements to the WSIB staff and to his health professionals of having no improvement in his functional abilities or impairment is false and misleading, is proof beyond a reasonable doubt that the defendant has committed the actus reus of the offence of making a false or misleading statement or representation to the WSIB and to his health professionals in regards to his level of functional ability and about the severity of his impairment in connection to the defendant’s claim for benefits between January 18, 2024 to February 28, 2024 in the City of Mississauga, contrary to s. 149(1) of the WSIA, 1997.
173After considering all the evidence, the prosecution has met it burden in proving beyond a reasonable doubt that the defendant had made statements or representations concerning his functional ability to the WSIB or to his health professionals in connection with his claim for benefits; that the defendant’s statements or representations concerning his functional ability made to the WSIB or to his health professionals in connection with his claim for benefits had been false or misleading; and that the defendant’s false or misleading representations or statements concerning his functional ability made to the WSIB or to his health professionals in connection with his claim for benefits caused the WSIB to provide or continue to provide WSIB benefits to the defendant.
174Therefore, the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of knowingly making a false or misleading statement or representation concerning his functional ability to the WSIB in connection with his claim for benefits between January 18, 2024 to February 28, 2024 in the City of Mississauga.
(F) HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT THE MENS REA ELEMENT OF THE OFFENCE THAT THE DEFENDANT HAS BEEN CHARGED WITH?
175The prosecution submits that the sole reasonable inference to be drawn from the direct and circumstantial evidence adduced at trial, is that during the material times, the defendant had “knowingly” withheld from the WSIB that he was capable of lifting, gripping, and pushing or pulling at a much higher level than what had been documented in his medical reports in order to continue his claim for benefits. Moreover, the prosecution also argues that even though there is no direct evidence of his motives, a reasonable inference can be made that the defendant did so in order to continue receiving access to loss of earnings, health care, and return-to- work services benefits with the WSIB. Furthermore, the prosecution contends that the defendant had perpetuated the impression, which he had continually given to his health professionals and the WSIB staff, that his pain had been so bad that he had been unable to return to work. This impression by the defendant of being in constant pain continued throughout January and February of 2024, and during the surveillance of the defendant by the private investigation firm between February 10, 2024 to February 26, 2024. Furthermore, the prosecution also submits that Dr. Krievens, the medical expert, had noted on p. 9 of his report, that the defendant had continued with his impression of being in constant pain into the summer of 2024, long after the activities of the defendant had been depicted on the surveillance video. In addition, the prosecution submits the defendant had testified that because he had experienced significant pain after engaging in these activities of February 22, 2024, he did not believe he had to report these activities to the WSIB; however, the prosecution argues that it is not the defendant’s role to make determinations on his entitlement for WSIB benefits. Therefore, the prosecution submits that the defendant’s mistaken belief in not having to report his physical activities to the WSIB because he had still felt pain after engaging in those physical activities on February 22, 2024, is not a defence to the s. 149(1) charge.
176In addition, the prosecution submits that the willful or voluntary nature of the defendant’s misrepresentation of his functional abilities to the WSIB and to his health professionals can likewise be inferred on the same direct and circumstantial evidence. More importantly, the prosecution contends that the defendant had also been presented with numerous opportunities to be truthful about his functional abilities. In conversations with WSIB Case Manager Kazi on February 23, 2024, or during his Return-to-Work meeting with WSIB Return-To-Work Specialist Kerswell on February 28, 2024, just days after the defendant’s physical activities had been recorded on the surveillance video of February 22, 2024, the defendant had failed to do so on either occasion. Furthermore, the prosecution contends that this situation is akin to that identified by the Court in Workplace Safety and Insurance Board v Koomson, [2011] O.J. No 5944 (Ont. C.J.), at para. 125, in that the defendant may have a vested interest in not being forthright or truthful with medical professionals because doing so might compromise his receipt of WSIB benefits.
177Additionally, the prosecution also argues that there was no evidence adduced that the defendant was incapable of appreciating the nature and quality of his acts or incapable of knowing his actions on February 22, 2024, were wrong. The prosecution further submits that none of the evidence adduced at trial tended to prove that the defendant had been in a state of impaired consciousness or a dissociative state, and therefore, engaging in involuntary behaviour when the defendant was videotaped engaging in activities on February 22, 2024, beyond his stated level of functional abilities.
178On the other hand, the defence submits that the prosecution has presented no direct evidence of the defendant’s intent, and while intent may be inferred from conduct, the defence submits that the circumstances in the present case do not support an inference of the defendant knowingly making a misrepresentation to the WSIB. The defence further argues that the surveillance video of the defendant only shows conduct and does not show the defendant’s comprehension, nor the defendant’s intent or that the defendant had been dishonest. Moreover, the defence also argues that the WSIB’s own internal characterization of the surveillance video of the defendant is not evidence of the defendant’s intent. In addition, the defence contends that the prosecution has not presented evidence of any other occasions where the defendant had engaged in activities that were beyond his stated limitations or restrictions, so that the one isolated incident of February 22, 2024, does not establish a pattern of misrepresentation to the WSIB. Furthermore, the defence argues that the Medical Reports from the defendant’s health professionals entered as exhibits in respect to the defendant’s functional abilities were accurate reflections of the defendant’s condition and level of functional ability. In addition, the defence contends that the medical reports that were issued by the defendant’s health professionals after February 22, 2024, had accurately reflected the defendant’s continued pain and limitations, and if the defendant had experienced a genuine improvement, one would expect the defendant to report this to his doctors. Also, the defence submits that the defendant had continued to report pain and limitations that would be consistent with the defendant’s testimony that the defendant’s activities on February 22, 2024, had caused the defendant pain and did not represent an improvement.
179Furthermore, the defence argues that the defendant had testified that he had genuinely believed that his condition had not improved because he had experienced significant pain after the activities of February 22, 2024, and that the defendant had only been attempting to test his abilities to determine if he could return to work. In addition, the defence submits that the defendant did not understand that a single incident of activity that resulted in significant pain needed to be reported to the WSIB and that the defendant had no motive to deceive, as the defendant had wanted to return to work. Moreover, the defence argues that even if the defendant’s belief was mistaken, an honest belief negates the mens rea of "knowingly" making a false representation. And, as confirmed in Curtis v. Ontario (Workplace Safety and Insurance Board), 2018 ONCA 441, [2018] O.J. No. 2483 (Ont. C.A.), at para. 22, the defence submits that an honest but mistaken belief—even a misunderstanding of one's obligations—can negate mens rea where it negates the existence of the required culpable mental state.
180Moreover, to prove mens rea or guilty mind, the prosecution has the burden of proof to establish beyond a reasonable doubt, through evidence, that the accused person possessed the required mental state of intent, knowledge, willful blindness, or recklessness at the time the actus reus of the offense is committed. This is accomplished by linking the actus reus (or physical act) to the accused's subjective state of mind. Furthermore, the prosecution also has the burden to prove that the accused person actually had the specific intent, knowledge, willful blindness, or recklessness regarding the consequences of their actions. This is often shown through circumstantial evidence, such as words spoken, actions taken before or after the offence. And, since the accused’s state of mind is not directly visible, prosecutors often have to rely on inferences drawn from the surrounding circumstances to establish mens rea.
181Moreover, there are several ways in which a court can find that the mens rea element has been proven beyond a reasonable doubt. The court can make reasonable inferences from evidence of the accused’s actions and statements which show the accused had intended their actions or which can be considered to have been reckless as to whether a consequence would occur, or circumstances would exist following their conduct. Or, the court may consider evidence that shows the accused had subjective knowledge of a fact or had deliberately remained ignorant of it, or the court may consider circumstantial evidence of the accused’s motive, preparation, and actions that when considered together create a logical and inescapable conclusion of guilt.
182Ergo, since direct evidence of an accused person's internal state of mind (mens rea) is rarely available, the prosecution is allowed to present indirect, or circumstantial, evidence to a judge or trier-of-fact to establish the requisite mens rea. Such evidence includes the accused's actions, spoken words, documented statements, and all the surrounding circumstances of the incident. The judge or trier-of fact can then logically deduce, or "infer," the accused's intent from these facts.
183However, the defence does not have the legal or persuasive burden to prove the lack of mens rea or that the prohibited act or omission was not committed by the accused person voluntarily. Indeed, the prosecution always bears the burden of proving the prohibited act or omission was willed or voluntary. On the other hand, the defence can create reasonable doubt by simply pointing to evidence adduced, or in the record, to show that the accused person did not voluntarily commit the prohibited act or omission or that the accused person had lacked the requisite mens rea for the offence.
184Moreover, knowledge is the awareness of a fact or circumstance. It is a state of mind, which is generally proven by inference from the surrounding circumstances. In R. v. Aiello, 1978 CanLII 2374 (ON CA), [1978] O.J. No. 373, 38 C.C.C. (2d) 485 (Ont. Supreme Ct. – Ct. of App.), Martin, J.A. for the Ontario Court of Appeal held, at paras. 7 and 8, that the knowledge on the part of the accused necessary to constitute the offence, need not be proved by direct evidence, but could be inferred from all the surrounding circumstances [emphasis is mine below]:
We are all of the view that the learned trial judge fell into a serious error in instructing the jury that the Crown, in order to establish possession, was required to prove beyond a reasonable doubt that the respondent knew that the package contained heroin. We are also of the view that the trial judge erred in failing to direct the jury that the knowledge on the part of the respondent necessary to constitute the offence, need not be proved by direct evidence but could be inferred from all the surrounding circumstances.
In our view the trial judge should have directed the jury that if they were satisfied beyond a reasonable doubt that the respondent assumed control of the package, knowing that it contained a drug, the trafficking in which was prohibited, or was wilfully blind to it being such a drug or was reckless as to whether it was such a prohibited drug, then the knowledge necessary to constitute the offence was established. The trial judge in our view should have further directed the jury that it was not necessary for the prosecution to prove the required knowledge by direct evidence, but that it could be inferred from the surrounding circumstances, such as, for example, the finding of the drug on the accused's person in his trouser pant leg, his evidence that he figured that it must be a drug, the circumstances in which, and the place where he had picked up the package.
185Furthermore, in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] S.C.J. No. 63, 2 S.C.R. 973 (S.C.C.), Lamer C. J., for the Supreme Court of Canada, held at paras. 24 and 25, that to determine whether mens rea is "negated" in a particular case, the first question that must be asked is whether the mental element of the offence in question is defined in such a way that either an actor's motives or his or her immediate desires have any direct relevance. Furthermore, Lamer C.J. explained that the mental element of a crime ordinarily involves no reference to motive, instead, in most criminal trials, the mental element, the mens rea with which the court is concerned, relates to intent [emphasis is mine below]:
In general, a person who performs an action in response to a threat will know what he or she is doing, and will be aware of the probable consequences of his or her actions. Whether or not he or she desires the occurrence of these consequences will depend on the particular circumstances. For example, a person who is forced at gunpoint to drive a group of armed ruffians to a bank will usually know that the likely result of his or her actions will be that an attempt will be made to rob the bank, but he or she may not desire this result -- indeed, he or she may strongly wish that the robbers' plans are ultimately foiled, if this could occur without risk to his or her own safety. In contrast, a person who is told that his or her child is being held hostage at another location and will be killed unless the robbery is successful will almost certainly have an active subjective desire that the robbery succeed. While the existence of threats clearly has a bearing on the motive underlying each actor's respective decision to assist in the robbery, only the first actor can be said not to desire that the robbery take place, and neither actor can be said not to have knowledge of the consequences of their actions. To determine whether mens rea is "negated" in a particular case, therefore, the first question that must be asked is whether the mental element of the offence in question is defined in such a way that either an actor's motives or his or her immediate desires have any direct relevance. As A. W. Mewett and M. Manning explain:
Mens rea...has more than one meaning. It can entail a purpose, a desire to achieve an objective; it can entail merely knowledge that consequences will follow or that circumstances exist; it can entail only recklessness, that is, some advertent or perhaps inadvertent disregard of the consequences or circumstances. What suffices for liability depends upon the particular offence with which we are dealing. If a person is compelled to do an act which he does not wish to do, and therefore does it "against his will", why, it may be asked, does he have a defence not of compulsion but simply of lack of mens rea? The answer is that this is quite true, but only if the mens rea required for the particular offence in question is of the sort that is negatived by a person being compelled to do something against his will.
(Mewett & Manning on Criminal Law (3rd ed. 1994), at p.
520.)
As Dickson J. (as he then was) observed in Lewis v. The Queen, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821, at p. 831, "[t]he mental element of a crime ordinarily involves no reference to motive". Instead, he noted, "[i]n most criminal trials, the mental element, the mens rea with which the court is concerned, relates to 'intent'". Intention, however, is distinct from desire or subjective wish. As Lord Simon of Glaisdale (dissenting, but on another issue) stated in Lynch, supra, at p. 690:
[A]n intention to bring about a consequence of an act can co-exist with a desire that such consequence should not ensue.... [A] wish is a particular instance of desire.... [T]herefore, an intention to perform the act with foreseen consequences can co-exist with a wish not to perform an act or that its consequences should not ensue (this is crucial in considering the juridical effect of duress). [Emphasis in original.]
186In addition, Justice Cory of the Supreme Court of Canada in R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77 (QL), at paras. 6 to 9 and 11, noted that the mens rea element of an offence concerns the willed or voluntary conduct in committing the prohibited act or omission. He also referred to the description of the mens rea element set out by McLachlin J. in R. v. Theroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5 (S.C.C.), in which she had recognized that the term “mens rea” does not encompass all of the mental elements of a crime, since the actus reus of an offence has its own mental element where the act must be the voluntary act of the accused for the actus reus to exist, and that the mens rea element typically is concerned with the consequences of the prohibited actus reus and refers to the guilty mind or the wrongful intention of the accused, and that its function is to prevent the conviction of the morally innocent, namely those who do not understand or intend the consequences of their acts [emphasis is mine below]:
The Physical and Mental Aspects of Criminal Acts
Originally a crime was considered to be the commission of a physical act which was specifically prohibited by law. It was the act itself which was the sole element of the crime. If it was established that the act was committed by the accused then a finding of guilt would ensue. However, as early as the twelfth century, in large part through the influence of the canon law, it was established that there must also be a mental element combined with the prohibited act to constitute a crime. That is to say that the accused must have meant or intended to commit the prohibited act. The physical act and the mental element which together constitute a crime came to be known as the actus reus denoting the act, and the mens rea for the mental element. Like so many maxims they are imprecise and in many instances misleading.
For my purposes it is sufficient to say that for a great many years it has been understood that, unless the legislator provides otherwise, a crime must consist of the following elements. First, a physical element which consists of committing a prohibited act, creating a prohibited state of affairs, or omitting to do that which is required by the law. Second, the conduct in question must be willed; this is usually referred to as voluntariness. Some writers classify this element as part of the actus reus, others prefer to associate it with mens rea; however, all seem to agree that it is required. (See, generally, J. C. Smith and B. Hogan, Criminal Law (7th ed. 1992), at pp. 37 ff.) If persons other than lawyers were asked what constituted willed or voluntary conduct they would respond that such an act or conduct must involve a mental element. It is the mental element, that is the act of will, which makes the act or conduct willed or voluntary. In R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, at p. 17, McLachlin J. had this to say concerning the actus reus:
The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent -- those who do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of the prohibited actus reus.
Similarly, in R. v. Parks, 1992 CanLII 78 (SCC), [1992] 2 S.C.R. 871, at p. 896, La Forest J. quoted the following passage from the dissenting reasons of Dickson J. (as he then was) in Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p. 522:
Although the word "automatism" made its way but lately to the legal stage, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act.
The definition of actus reus is thus established. Yet I should add that, as will be seen later, the mental aspect involved in willed or voluntary conduct may overlap to some extent in both the concept of mens rea and actus reus. Finally, then there must be a contemporaneous mental element comprising an intention to carry out the prohibited physical act or omission to act; that is to say a particular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs.
With this concept of a crime established it soon came to be accepted that in certain situations a person who committed a prohibited physical act still could not be found guilty. A number of examples come to mind. For instance, if a person in a state of automatism as a result of a blow on the head committed a prohibited act that he was not consciously aware of committing, he could not be found guilty since the mental element involved in committing a willed voluntary act and the mental element of intending to commit the act were absent. Thus neither the requisite actus reus or mens rea for the offence was present. The result would be the same in the case of a person who had an unexpected reaction to medication which rendered him totally unaware of his actions. Similarly, if an accused, during an epileptic seizure, with no knowledge of what he was doing, shot and killed a victim, he could not be found guilty of murder since both the ability to act voluntarily and the mental element of the intention to kill were absent. In all these instances the accused simply could not have formed the requisite intention to commit the prohibited act. Further, it was long ago recognized that a person suffering from a mental illness coming within the scope of what is now s. 16 of the Criminal Code could not be found guilty. That result may have arisen either from the recognition of the inability of a mentally ill accused to form the requisite intention, or from the realization that the nature and quality of the prohibited act was not appreciated by the accused.
It can thus be seen that with the development of principles recognizing constituent elements of crimes, particularly the need for a mental element, there came the realization that persons who lack the requisite mental element for a crime should not be found guilty of committing that crime. For centuries it has been recognized that both the physical and the mental elements are an integral part of a criminal act. It has long been a fundamental concept of our criminal law.
187Moreover, in R. v. Theroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5 (S.C.C.), at paras. 21 to 24, McLachlin J. held that in cases where the actus reus does not involve an objective standard or one of absolute liability, then the test for mens rea is subjective, but that the prosecution or Crown need not, in every case, show precisely what thought was in the accused's mind at the time of the prohibited act or omission, and that in certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference [emphasis is mine below]:
This brings me to the question of whether the test for mens rea is subjective or objective. Most scholars and jurists agree that, leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens rea is subjective. The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the court looks to the accused's intention and the facts as the accused believed them to be: G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 727-28.
Two collateral points must be made at this juncture. First, as Williams underlines, this inquiry has nothing to do with the accused's system of values. A person is not saved from conviction because he or she believes there is nothing wrong with what he or she is doing. The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral. Just as the pathological killer would not be acquitted on the mere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that what he was doing was honest.
The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thought was in the accused's mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference. The fact that such an inference is made does not detract from the subjectivity of the test.
… The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence.
188Additionally, Binnie J. in R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.J. No. 27 (S.C.C.), at paras. 37 and 39, accepted the notion that the acts of an apparently conscious person are usually voluntary. He further accepted that the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge the onus of proving the accused willed or voluntarily did the prohibited act or omission, unless there are grounds for believing that the accused was unable to control that act or omission [emphasis is mine below]:
The criminal law is premised on the responsibility of sane individuals for their voluntary acts or omissions. We infer from common experience that the acts of an apparently conscious person are usually voluntary. The issue here, however, is whether such an inference of voluntariness can be drawn after the trial judge has ruled that there is credible evidence that the accused was unconscious throughout the commission of the offence.
The relationship between voluntariness and consciousness was also addressed by Mason C.J., Brennan and McHugh JJ. in R. v. Falconer (1990), 50 A. Crim. R. 244 (Aust. H.C.), at p. 250:
Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily ..., the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act. [Emphasis added.]
189Thus, if the defendant was not in an unconscious or dissociative state from January 18, 2024 to February 28, 2024, then it can be inferred that the acts or omissions done by the defendant were willed or voluntary.
190Furthermore, in R. v. Tyrell, (2014), 123 O.R. (3d) 109, 2014 ONCA 617, Doherty J.A. for the Court of Appeal for Ontario reiterated, at para. 30, that proof of knowledge, or of its close cousin, wilful blindness, demands a subjective inquiry, so the question is "what did the accused know" and not "what ought he to have known [emphasis is mine below]:
Proof of knowledge, or of its close cousin, wilful blindness, demands a subjective inquiry. The question is "what did the accused know" and not "what ought he to have known": see R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, [1957] S.C.J. No. 32, at pp. 538, 541-42 S.C.R. Generally speaking, the doctrine of constructive or imputed knowledge based on what a person "ought to have known" has no place in the criminal law: [page118] R. v. F.W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629, [1974] O.J. No. 1897, 18 C.C.C. (2d) 23 (C.A.), at p. 30 C.C.C.
191Also, in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, S.C.J. No. 13, at paras. 21 to 24, the Supreme Court of Canada specified that the doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries [emphasis is mine below]:
Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”
Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):
. . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]
It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine: The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added.]
(Criminal Law: The General Part (2nd ed. 1961), at
p. 159 (cited in Sansregret, at p. 586).)
Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241).
While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire
but, to repeat Professor Stuart’s words, “deliberate ignorance”
192In addition, the Court of Appeal for Ontario in R. v. Farmer, [2014] O.J. No. 5736, 2014 ONCA 823, at paras. 22 to 26, found that the accused had “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge” or became “aware of the need for some inquiry [yet] decline[d] to make the inquiry because he [did] not wish to know the truth.” [emphasis is mine below]:
In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, the Supreme Court explained, at para. 21, that “wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries” (emphasis in original). Writing for the court, Charron J. adopted Sopinka J.’s statement in R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, at para. 103: “A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” Briscoe emphasizes the need to keep the concepts of wilful blindness and recklessness distinct. As explained in Sansregret, at p. 584:
[W]hile recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added in Briscoe.]
Charron J. also cited with approval the discussion of wilful blindness by two eminent criminal law scholars. Professor Glanville Williams, in Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons,1961), at p. 159, explained the “very limited scope” of wilful blindness in the following way:
A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added in Briscoe.]
Referring to Professor Don Stuart’s Canadian Criminal Law: A Treatise, 5th ed. (Toronto: Carswell, 2007), at p. 241, Charron J. agreed, at para. 24, that “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion.” Charron J. added that “[w]hile a failure to inquire may be evidence of recklessness or criminal negligence… wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, ‘deliberate ignorance.’”
In R. v. Duncan, 2013 ONCA 774, [2013] O.J. No. 5838, this court considered language in a jury instruction to the effect that wilful blindness could be established on the basis of evidence that the accused knew child pornography “could be accessed through Limewire or had a suspicion that it could be.” The court held that this language was too broad and failed to deal with the level of suspicion required to engage the doctrine of wilful blindness.
In my respectful view, the same error is revealed by the reasons of the trial judge in the present case. While he did cite Sansregret, he did not focus on the need to find that the respondent “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge” or became “aware of the need for some inquiry [yet] decline[d] to make the inquiry because he [did] not wish to know the truth.” The trial judge was only prepared to find that the respondent was “at least suspicious” that M.R. had accessed or downloaded child pornography and that but for his relationship with M.R. he “would and should” have made further inquiries. In my view, while this might support a finding of negligence or recklessness, it falls short of a situation where it “can almost be said that the defendant actually knew” so as to amount to wilful blindness.
193For the case at bar, the prosecution contends that the defendant knew about or ought to have been aware of the change in his functional ability, considering the surveillance videotape recording entered as Exhibit #17 and the surveillance report entered as Exhibit #18, shows that the defendant had the ability and capability to continuously drive a motor vehicle for more than 10 kms. on February 22, 2024 and on February 26 2024, and carry and lift objects that weigh approximately 40 lbs. for at least 15 minutes without taking a rest break, despite his communication to the WSIB and in his medical reports that indicate that he is unable to return to work because there had been no improvement in respect to his injured left elbow and arm, and his health professionals limiting and restricting his physical activities of not lifting objects that weighed more than 5 lbs. without taking a break after 5 minutes, and Dr. Mechetiuc’s limitation and restriction given to the defendant on February 24, 2024, not to drive continuously for than 10 kms.
194In addition, the prosecution in proving that the defendant has committed the actus reus of the s. 149(1) offence beyond a reasonable doubt, has also proven that the defendant had directly conveyed, communicated, or stated to the WSIB Case Manager Kazi and to WSIB Return-To-Work Specialist Kerswell between January 18, 2024 and February 28 2024, that he had been unable to do any chores or lift his cellphone, had stayed home, and that he had still been in pain, and that his functional ability had not improved so he had been unable to return to work. In addition, the defendant had also conveyed, communicated, or stated to his physicians and to his physiotherapists between January 18, 2024 and February 28 2024, that he felt pain in both his left and right elbows and that his functional ability had not improved from the treatment and that he had still been in pain. This communication and statements by the defendant given directly to the WSIB and to his health professionals about not having any improvement in his functional abilities were false statements or false representations, as they had contradicted his actions of driving a motor vehicle for more than 10 kms, being at Double AA Woodworking Ltd. for many days and for many hours, and the physical activity of independently lifting and carrying objects weighing about 40 kg. which had been observed by surveillance of the defendant and captured on surveillance video between February 10, 2024 and February 26, 2024, which had exceeded his physical limitations and restrictions on not driving continuously for more than 10 kms. and for not lifting objects weighing more than 5 kg. without taking a break after 5 minutes.
(1) To obtain a conviction for the offence under s. 149(1), the prosecution does not have to prove that the defendant had been aware that he had to notify the WSIB about any change in his health, income, employment, or level of functional ability?
195The defence submits that there is no evidence that the defendant had been aware or that he knew about the requirement to inform the WSIB about the change in the level of his functional ability to perform tasks related to his pre-injury employment. However, the defendant has not been charged with committing the offence of “failing to notify the WSIB of a material change within 10 days of the change occurring” under s. 149(2) of the Workers Safety and Insurance Act, 1997.
196In Curtis v. Ontario (Workplace Safety and Insurance Board), 2018 ONCA 441, [2018] O.J. No. 2483, the Court of Appeal for Ontario in determining what had to be proven by the prosecution in order to obtain a conviction for the offence of “wilfully fails to inform the Board of a material change of circumstances in connection with his or her entitlement to benefits" under s. 149(2) of the W.S.I.A., 1997, held at paras. 10 and 11, and 15 to 22, that mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. In addition, the Court of Appeal held that the phrase "in connection with his or her entitlement to benefits" is used to define the scope of a "material" change and that the use of this phrase suggests a consequence flowing from the change, so in this context, it would be the receipt of benefits under the W.S.I.A., 1997 to which a worker is no longer entitled [emphasis is me below]:
The use of the word "wilfully" in the statutory text is important and signifies a legislative intention to create a true criminal offence "in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence": R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at para. 60. The term "wilfully" is a term of art usually used to express a mens rea requirement that "stresses intention in relation to the achievement of a purpose": R. v. Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941 at para. 13.
That interpretation is supported by the use of "in connection with his or her entitlement to benefits" to define the scope of a "material" change. The use of this phrase suggests a consequence flowing from the change, in this context, receipt of benefits under the WSIA to which a worker is no longer entitled.
Injured workers are a vulnerable group. Some, like Mr. Kathirkamapillai, may suffer traumatic stress injuries and lasting mental illness such as depression. Others, like Mr. Koomson, may suffer traumatic head injuries which leave them with permanent cognitive impairment. Others, like Mr. Curtis, may suffer bodily injury that results in chronic pain and reduced mobility. Understanding whether a change in symptoms is or is not material in relation to entitlement to benefits may require medical expertise, and an understanding of the basis upon which benefits have been provided which is not always apparent to an injured worker. Some injured workers may have language difficulties.
In this context, where the offence is committed as a result of a failure to act, conviction should not follow unless the Crown proves either that the worker failed to report a material change with the intention that he or she receive benefits to which he or she is not entitled, or subjectively knew that such a result is substantially certain to follow.
I am not convinced by the WSIB argument that a minimal mens rea requirement is necessary to advance the objectives of the legislative regime. The WSIB has all the powers necessary to declare that overpayments have been made and to recover benefit-related debt resulting from a failure to report a material change in circumstance.
This offence is analogous to the offence of tax evasion, described in R. v. Klundert (2004), 2004 CanLII 21268 (ON CA), 242 D.L.R. (4th) 644 (C.A.). As here, tax evasion is defined as a wilful act; the wilful evasion of the payment of taxes imposed by the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) and akin to fraud. As here, the statutory regime calls for self-reporting of income so that tax liability can be established. As here, the regime is "necessarily and notoriously complex" where no lay person could be "expected to know all of the complexities of the tax laws": Klundert, at para. 55. A search of canlii.org shows that the WSIAT rendered some 75,486 decisions between January 1, 1986 and April 13, 2018. As here, tax evasion may be committed by a failure to act (a failure to report income) and there is a statutory regime for the recovery of money which should have been paid.
Under similar circumstances, Doherty J.A. concluded at para. 47 of Klundert, that proof of tax evasion required proof that an accused:
did something or engaged in a course of conduct that avoided or attempted to avoid the payment of tax imposed by the Act;
knew there was tax imposed by the Act; and
engaged in the conduct for the purpose of avoiding or attempting to avoid payment of tax imposed by the Act or knowing that avoiding payment of tax imposed by the Act was a virtual certain consequence of his actions. [Citation omitted.]
This analysis is applicable to the language of s. 149(2), the legislative purpose, and the context of this offence. I agree that in order to obtain a conviction under s. 149(2) of the WSIA, the prosecution must prove the following:
The accused knew that a material change in his or her health, income, employment status or other circumstance had occurred. Material change means a change that could affect his or her entitlement to benefits paid by the WSIB;
The accused intended not to inform the WSIB of that change; and
The accused:
a. intended by the failure to inform, to receive benefits to which he or she was not entitled, or
b. foresaw that the failure to inform was substantially certain to result in the receipt of benefits to which he or she was not entitled.
In many cases the inference of the requisite mental state will readily follow. Where an accused who is receiving full income replacement benefits is discovered earning full-time income under the table, the inference that he or she intended by failing to inform the Board of this change to receive benefits to which he or she is not entitled is easily drawn.
As in Klundert, however, the requisite mens rea to sustain a conviction under s. 149(2) may be negated by a mistaken belief. That mistaken belief may be based on a mistake of fact, a misunderstanding of the law or a combination of both. The guilty knowledge necessary to sustain a conviction will be imputed to an accused who is wilfully blind, that is to say, knows that there had been a material change likely to affect his or her entitlement to benefits but deliberately chooses not to make the inquiries which would fix him or her with knowledge, so that he or she can deny knowledge: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 21 and 23.
197Ergo, the Court of Appeal’s list of what had to be proven to obtain a conviction for the W.S.I.A., 1997 offence in Curtis v. Ontario (Workplace Safety and Insurance Board), (Ont. C.A.), had been for the offence of “wilfully fails to inform the Board of a material change of circumstances in connection with his or her entitlement to benefits" that is set out in s. 149(2) and is not the same or identical for the offence set out in s. 149(1). The offence in s. 149(1) does not expressly state that a person has to notify the WSIB of a change in the person’s health, income, employment as is required for the prosecution to obtain a conviction for the offence under s. 149(2). Moreover, the offence in s. 149(1) is not one based on the failure to act, but is one based on committing the positive act of “making a false or misleading statement or representation” to the WSIB concerning the entitlement to benefits.
198Moreover, in Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513 (S.C.C.), at p. 545, Dickson J. held that the Crown always bears the burden of proving a voluntary act and that a person is only responsible for their conscious, intentional acts or omissions, but not responsible if they have a disease of the mind or a defect of reason where they are unable to appreciate the nature and quality of an act or that its commission is wrong [emphasis is mine below]:
The prosecution must prove every element of the crime charged. One such element is the state of mind of the accused, in the sense that the act was voluntary. The circumstances are normally such as to permit a presumption of volition and mental capacity. …
… the Crown always bears the burden of proving a voluntary act.
At common law, a person who engaged in what would otherwise have been criminal conduct was not guilty of a crime if he did so in a state of unconsciousness or semi-consciousness. Nor was he responsible if he was, by reason of disease of the mind or defect of reason, unable to appreciate the nature and quality of an act or that its commission was wrong. The fundamental precept of our criminal law is that a man is responsible only for his conscious, intentional acts. Devlin J. summed up the position in R. v. Kemp [[1956] 3 All E.R. 249.]:
In the eyes of the common law if a man is not responsible for his actions he is entitled to be acquitted by the ordinary form of acquittal, and it matters not whether his lack of responsibility was due to insanity or to any other cause. (at p. 251)
199Ergo, in order for the prosecution to obtain a conviction under s. 149(1) of the W.S.I.A., 1997, the prosecution does not have to prove that the defendant had been aware that he had to notify the WSIB about any change in his health, income, employment, or level of functional ability, which is what would have to be rightly proven for a conviction under the parallel charge under s. 149(2) of the W.S.I.A., 1997.
(2) Presumption that a person intends the natural consequences of their acts
200In D.P.P. v. Beard [1920] A.C. 479 (H.L.), it was held that a person is presumed to intend the natural consequences of their acts.
201Moreover, in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, S.C.J. No. 53, Bastarache J. for the majority of the Supreme Court of Canada, at paras. 34 and 50, examined the intoxication defence and reiterated that evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and that merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. Furthermore, Bastarache J. indicated that proper instructions to the jury about the intoxication defence should state the following: “in determining the accused's state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Moreover, Bastarache J. indicated that common sense dictates that people are usually able to foresee the consequences of their actions and where a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, Bastarache J. held that if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences [emphasis is mine below]:
The modern defence of intoxication stems from the decision of the House of Lords in Director of Public Prosecutions v. Beard, [1920] A.C. 479. Finding that intoxication, in some cases, could be a defence, the House of Lords articulated the following propositions, at pp. 500-502:
(1)That intoxication could be a ground for an insanity defence if it produced a disease of the mind.
[page548]
(2)That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.
(3)That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
The Canute-type charge underwent one further modification in R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252. There, this Court held that while it is necessary for trial judges to instruct on the common sense inference for specific intent offences, where there is evidence of intoxication, there must be a direct link drawn between the effect of intoxication and the common sense inference:
When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, in determining the accused's state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.
However, different considerations will apply where there is evidence that the accused was intoxicated at [page556] the time of the offence. The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused's actual intent. That same common sense makes it readily apparent that evidence of intoxication will be a relevant factor in any consideration of that inference. It follows that the jury must be instructed to take into account the evidence of the accused's consumption of alcohol or drugs, along with all the other evidence which is relevant to the accused's intent, in determining whether, in all the circumstances, it would be appropriate to draw the permissible inference that the accused intended the natural consequences of his actions.
It is common knowledge that a significant degree of intoxication may affect a person's state of mind and thus the ability to foresee the consequences of actions. It is, therefore, essential for a trial judge to link the instructions given pertaining to intoxication to those relating to the common sense inference so that the jury is specifically instructed that evidence of intoxication may rebut that inference. See Robinson, at para. 65. A trial judge is obliged to ensure that the jury understands two important conditions: (1) the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication; and (2) the inference cannot be applied if the jury is left with a reasonable doubt about the accused's intention. [Emphasis deleted; paras. 19, 21 and 23.]
(a) Acta exteriora, indicant interiora secreta - Outward acts show inward intent.
202According to Black’s law dictionary 4th ed., p. 44, the maxim “Acta Exteriora Indicant Interiora Secreta” means that external acts indicate undisclosed thoughts:
ACTA EXTERIORA INDICANT INTERIORA SECRETA. 8 Coke, 146b. External acts indicate undisclosed thoughts.
203The Latin maxim “acta exteriora, indicant interiora secreta” also means that the outward acts show the internal secrets. Simply put, it means that the outward acts indicate the thoughts, which are hidden within. This maxim also denotes that people behave according to their intentions and what follows by the actions is a natural consequence. This principle further suggests that external actions or behaviors can reveal a person's inner thoughts, feelings, or intentions and this principle is often applied to infer the mental state or intentions of a person based on their external actions.
204In Canada (Procureur général) c. Atlantic Sugar Refineries Co. Ltd., [1978] J.Q. no. 114, at para. 32, Mayrand J.A. of the Quebec Court of Appeal in applying the maxim, “acta exteriora indicant interiora secreta", confirmed that mens rea may be found in the general situation and overt acts of the accused:
Les deux interprétations ne sont pas tellement éloignées l'une de l'autre. L'intention coupable des conspirateurs, plus précisément l'intention de diminuer la concurrence au-delà de la mesure permise, ne se manifeste généralement pas expressément. L'effet normal de leur entente est alors ce qui révèle le mieux leur intention, car l'on peut présumer que les parties ont consenti à tous les effets que l'exécution de leur entente devait naturellement entraîner.
Aetna Insurance Co. and 72 others v. The Queen (1977) 1977 CanLII 174 (SCC), 34 C.C.C. (2d) 157, M. le juge Ritchie à la p. 169:
"...the illegal character of the agreement lies on the fact that the prevention or lessening is undue and it appears to me that the best if not the only way in which to determine this is by considering whether competition would be unduly prevented or lessened if the design evidenced by the agreement were carried into effect".
Rex v. Container Materials Ltd. (1940) 1940 CanLII 369 (ON HCJ), 4 D.L.R. 293 (Ont. Supreme C.) M. le juge Hope à la p, 305:
"Mens rea cannot be based on such type of evidence alone, but may be found in the general situation and overt acts of the accused. Acta exteriora indicant interiora secreta".
205In Georges Emard Courville v. Minister of National Revenue (1964) 64 DTC 349 (Tax Appeal Board), Maurice Boisvert, Q.C. determined that the appellant's conduct was inconsistent with the intention described in his testimony acta exteriora indicant interiora secreta [emphasis is mine below]:
I have reached the conclusion, after a careful analysis of the evidence, that the appellant did not destroy the presumption of validity attaching to an assessment. The Supreme Court decision in Regal Heights Limited v. Minister of National Revenue, (1960) 1960 CanLII 75 (SCC), S.C.R. 902 [60 DTC 1270], applies to this case. At page 906, Judson J. said:
These efforts were all of a promotional character. The establishment of a regional shopping centre was always dependent upon the negotiation of a lease with a major department store. There is no evidence that any such store did anything more than listen to the promoters' ideas. There is, understandably, no evidence of any intention on the part of these promoters to build regardless of the outcome of these negotiations. There is no evidence that these promoters had any assurance when they entered upon this venture that they could interest any such department store. Their venture was entirely speculative. If it failed, the property was a valuable property, as is proved from the proceeds of the sales that they made. There is ample evidence to support the finding of the learned trial judge that this was an undertaking or venture in the nature of trade, a speculation in vacant land. These promoters were hopeful of putting the land to one use but that hope was not realized. They then sold at a substantial profit and that profit, in my opinion, is income and subject to taxation.
The above opinion is sufficient to show that the appellant's conduct was inconsistent with the intention described in his testimony acta exteriora indicant interiora secreta.
206Moreover, in R. v. Container Materials Ltd., 1940 CanLII 369 (ON HCJ), [1940] O.J. No. 232, 4 D.L.R. 293, 74 C.C.C. 113 (Ont. Sup. Ct. – H.C.J.), at para. 35, Hope, J. decided that it cannot be held that the seeking or obtaining of such advice, whatever the nature of such advice may have been, is evidence of lack of mens rea, and that mens rea cannot be based on such type of evidence alone, but may be found in the general situation and overt acts of the accused: "Acta exteriors indicant interiora secreta" or that in a court of law every man is taken to intend the natural and necessary consequences of his action [emphasis is mine below]:
Much stress has been laid by the defence on the innocence or lack of evil intent on the part of the accused, and it is claimed that there is no evidence in support of such intent. In fact the defence counsel urged that the fact that the accused sought and obtained legal advice on the matter of the agreements before entering into the same, indicated a definite intention to avoid violating the provisions of The Code. I cannot, however, hold that the seeking or obtaining of such advice whatever the nature of such advice may have been is evidence of lack of mens rea. Mens rea cannot be based on such type of evidence along, but may be found in the general situation and overt acts of the accused. "Acta exteriors indicant interiora secreta". Or as is so succinctly stated by Lord Parker in Attorney-General v. Adelaide SS. Co. (1913) A.C. 781 at p. 796:
"But in proving the intention the actual results of the contract or combination, or the monopoly or attempt to monopolize, may be of great materiality, for in a Court of law every man is taken to intend the natural and necessary consequences of his action."
207Ergo, it can be assumed that individuals generally intend the foreseeable and likely outcomes that naturally result from their conduct. In other words, if an action would predictably lead to a certain result, the law may presume that the person who performed that action intended that result, even if they don't explicitly state their intent. Ergo, the presumption that a person intends the natural and probable consequences of their acts is a common-law principle which allows a court to infer intent from actions. While historically treated as a strong presumption, modern criminal law generally views it as a permissive inference, a common-sense deduction rather than a binding legal rule. This presumption helps establish mens rea by assuming, unless proven otherwise, that someone intended the foreseeable and likely results of their voluntary conduct.
(3) The defendant had knowledge that the information provided to WSIB Case Manager Kasi regarding the lack of improvement to his functional ability and his inability to return back to work would affect his claim for WSIB benefits
208It can also be reasonably inferred that the defendant knew that the information he had provided to WSIB Case Manager Kasi, about the lack of improvement to his functional ability and his inability to return back to work, would affect his claim for WSIB benefits, since it was the defendant who had first reported his injury to his supervisor Yusuf Thamer and then attended his family physician to obtain a medical report to support his workplace injury claim. Moreover, it had also been the defendant himself, who had completed and sent the WSIB Form 6 (Worker’s Report Of Injury Or Illness) (Exhibit #1) to the WSIB to start his claim for WSIB benefits, in which the defendant had described his injury on the Form 6, and then had been subsequently granted loss of earnings, health care, and return-to-work services benefits by the WSIB on February 2, 2024, based on his reported injury to his left elbow and arm.
(4) The WSIB Had Instructed The Defendant To Report An Improvement Or Worsening In The Defendant’s Condition To Ensure That The Defendant’s Benefits Are Not Reduced Or Stopped:
209WSIB Case Manager Kazi had also testified that she had explained to the defendant his re-employment obligations to the WSIB on their first conversation that took place on February 5, 2024.
210More importantly, in the four WSIB letters sent to the defendant on January 20, 2024, February 2, 2024, March 7, 2024, and March 14, 2024, (see Exhibit #26), the defendant had been notified and instructed that the defendant had to report an improvement or worsening of the defendant’s condition within 10 days of that change to ensure that the defendant’s benefits would not be reduced or stopped. Moreover, in that same instruction contained in those 4 WSIB letters sent to the defendant, the defendant had also been informed that if the defendant had not been sure whether the defendant had needed to tell the WSIB about a change then the defendant had been instructed to contact the WSIB [emphasis is mine below]:
You must report the following changes in your circumstances to us within 10 days of the change, to make sure your benefits are not reduced or stopped: (1) an improvement or worsening in your condition; (2) an increase or decrease in your wages; (3) beginning to get, or changes to your Canada Pension Plan disability benefits; (4) a change in your job duties or hours; and (5) a change in your ability to co-operate in treatment, early and safe return-to-work activities, or work reintegration program. It is also stated that, “Please contact us if you’re not sure whether you need to tell us about a change. We can review the information and decide if we need to make adjustments to your benefits.
211Therefore, if the defendant had been able to complete Form 6 with the assistance of his wife and the Google Translate software application, as he testified to at trial, then the defendant would have also been able to translate the 4 WSIB letters using the Google Translate software application that had included the instructions that the defendant had been required to report an improvement or worsening of the defendant’s condition within 10 days of that change to ensure that the defendant’s benefits would not be reduced or stopped. Furthermore, as he had testified to at trial, the defendant would have also had the assistance of his wife and his friend named Sam, who operated Double AA Woodworking Ltd., to help in translating the four WSIB letters (Exhibit #26), with those specific instructions on the obligation and requirement to report any changes in his circumstances to the WSIB within 10 days, especially in respect to the defendant’s ability to co-operate in treatment, early and safe return-to-work activities, or work reintegration program, in order that the defendant’s benefits would not be reduced or stopped. Moreover, the 4 WSIB letters also stated that the WSIB would review the information in regard to any change in circumstances and then decide if they would need to make adjustments to the defendant’s benefits.
212More importantly, the defendant would also been made aware of the opposite situation as well from those four WSIB letters (Exhibit #26), that informing the WSIB that the defendant had no improvement or positive change in his condition or functional ability would also ensure that the defendant’s loss of earnings benefits would not be reduced or stopped, but would instead continue.
(5) the defendant’s contention that he had no financial motive
213The defence contends that the defendant in not returning to work had not been motivated by the defendant’s desire to continue receiving benefits, since the defendant’s WSIB benefits are substantially less than regular employment income; that the defendant had expressed a desire to return to work in many of his medical records; that the defendant had cooperated with return-to-work planning, and the defendant had been eager to return to work when medically cleared.
214Albeit there is no direct evidence adduced about any motive the defendant had in continuing to inform his health professionals and the WSIB of not having any improvement in his functional ability to be able to return to work, someone receiving two sources of income may get more income than from only one source, otherwise known as “double dipping”.
215Moreover, the effect or consequence of the defendant engaging in the actus reus of the s. 149(1) offence of making false or misleading representations or statements to the WSIB or to his health professionals concerning his functional abilities, is that the defendant continued to obtain loss of earnings, health care, and return-to-work services benefits from the WSIB to which the defendant was not entitled. This wrongful activity by the defendant depletes the compensation fund, essentially depriving eligible injured workers from these funds.
(6) the defendant’s mistaken believe that he did not have to inform the WSIB about engaging in strenuous physical activities on February 22, 2024, of lifting and carrying objects up to 40 lbs. because it had only been an “one-time” test of his functional abilities and that he had felt significant pain afterwards and had no improvement in his condition
216The defence contends that the defendant’s physical activity captured on video on February 22, 2024, in which the defendant had been lifting and carrying objects weighing up to 40 lbs. for about 15 minutes, despite the defendant being restricted by his health professionals to not lift more than 5 kg. had been an isolated incident where the defendant had only been testing his abilities. In addition, the defence contends that the defendant had immediate adverse consequences of experiencing pain following those physical activities. As a consequence of the adverse consequences, the defence submits that the defendant had an honest belief that no reportable improvement had occurred, as well as there had been a potential misunderstanding of reporting requirements to the WSIB that had been compounded by language barriers. Furthermore, the defence contends that there had been no pattern of deception or non-cooperation by the defendant.
217In R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, S.C.J. No. 135, Lamer C.J. of the Supreme Court of Canada, at para. 7, reiterated that the general rule is that defences should not be put to the jury which do not arise on the evidence and that there be a factual foundation, or, to put it more colloquially, an "air of reality" to a defence before the trial judge is required to leave it with the jury [emphasis is mine below]:
On the issue of the constitutionality of s. 265(4) of the Criminal Code, I agree with my colleagues' reasons that the section infringes neither s. 11(d) nor s. 11(f) of the Charter. The general rule is that defences should not be put to the jury which do not arise on the evidence. As with any defence, this section simply requires that, in the case of assault, there be a factual foundation, or, to put it more colloquially, an "air of reality" to a defence before the trial judge is required to leave it with the jury. Thus, the section conforms completely with normal trial procedure and the interests in ensuring that the jury is not distracted by extraneous matters in the trial of an issue.
218McLachlin J. (as she was then) in R. v. Osolin, at paras. 113 to 115, also held that before any defence can be put to the jury, the evidence must provide a basis for that defence. McLachlin J. also reasoned that this requirement is sometimes described by saying that there must be an "air of reality" to the defence and to put a defence to the jury where this "air of reality" is lacking on the evidence would be to risk confusing the jury and to invite verdicts not supported by the evidence. [emphasis is mine below]:
As my colleagues point out, before any defence can be put to the jury, the evidence must provide a basis for that defence. This requirement is sometimes described by saying that there must be an "air of reality" to the defence. To put a defence to the jury where this "air of reality" is lacking on the evidence would be to risk confusing the jury and to invite verdicts not supported by the evidence.
While the rule applies generally, it has attracted special attention in the context of trials for sexual assault. This is because one of the most common defences on such trials, the defence of honest but mistaken belief, is frequently asserted in cases where there is no evidentiary foundation for it, requiring the court to advise the jury that there is no air of reality to the defence.
In order to give an "air of reality" to the defence of honest but mistaken belief, there must be: (1) evidence of lack of consent to the sexual acts; and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting.
219Furthermore, Sopinka J. in R. v. Osolin, at para. 129, held that with respect to the defence of mistaken belief, the defence requires no more of the accused than the discharge of an evidentiary burden to adduce or point to some evidence on the basis of which a reasonable jury properly instructed could acquit [emphasis is mine below]:
With respect to the defence of mistaken belief, I agree with Cory J. that s. 265(4) "simply sets out the basic requirements which are applicable to all defences" (p. 676) and that it requires no more of the accused than the discharge of an evidentiary burden to adduce or point to some evidence on the basis of which a reasonable jury properly instructed could acquit. I believe we are all in agreement in this respect. Indeed, this is the basis for our determination that it is constitutional. The term "evidentiary burden" and the definition I have set out are well known to trial judges and well accepted. I cannot understand how the addition of the term "air of reality" helps in understanding the duty of a trial judge with respect to this defence. I am concerned that when an attempt is made to add to the definition of a basic concept in the criminal law, it only creates confusion. Just as attempts to refine the meaning of "reasonable doubt" have frequently resulted in reversible error, so too the use of the "air of reality" test encourages trial judges to weigh the evidence rather than apply the legal definition to which I have referred.
220Additionally, Cory J. in R. v. Osolin, at paras. 192 to 200, also confirmed that there must be an “air of reality” to a defence before it can be put to the jury and that the term "air of reality" simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted and that if the evidence meets that test then the defence must be put to the jury. More importantly, Cory J. also noted that in coming to a conclusion as to the sufficiency of the evidence pertaining to a defence, the trial judge must consider all the evidence and all the circumstances. Cory J. also concluded that it is only when the totality of the evidence tendered at the trial has been taken into account and considered in the light of all the relevant circumstances that the trial judge will be in a position to make a ruling as to the sufficiency of the evidence pertaining to a defence [emphasis is mine below]:
The same rule has been applied in the context of self-defence. In Brisson v. The Queen, 1982 CanLII 196 (SCC), [1982] 2 S.C.R. 227, the Court held that there must be an air of reality to the defence before it can be put to the jury. McIntyre J. for the majority on this issue stated (at p. 235):
A trial judge must put to the jury all defences which arise from the evidence. There must, however, be some evidence sufficient to give an air of reality to a defence before the obligation to put a defence can arise.
This Court again stated the requirement that there must be evidence sufficient to give an air of reality before a defence may be put to a jury in R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 S.C.R. 482. Writing for the majority, I held that the alternative verdict of manslaughter should not have been put to the jury because in light of the evidence presented in that case "[t]here was no air of reality to the defence" (pp. 505-6).
All these cases recognize the wise concept that the jury should only be instructed on defences that arise from the evidence which has been tendered. A juror should not be required to listen to instructions on defences which simply cannot be applicable to the case that they have heard. The comments to this effect made by Doherty J.A. in R. v. Haughton (1992), 1992 CanLII 7752 (ON CA), 11 O.R. (3d) 621, at p. 625, are particularly appropriate.
In the realm of sexual assault cases the requirement of sufficient evidence has caused some confusion. Yet in my view these words require no more than the application of the principles that have been set out above. In Pappajohn, supra, it was held that the defence of mistaken belief in consent should only be put to the jury if there was an adequate and evidentiary foundation found for it. There McIntyre J. writing for the majority stated that in order for the defence to be put to the jury it must have "an air of reality". He explained that term in these words (at pp. 126-27):
Before any obligation arises to put defences, there must be in the evidence some basis upon which the defence can rest and it is only where such an evidentiary basis is present that a trial judge must put a defence.
He then went on to state (at p. 133):
It would seem to me that if it is considered necessary in this case to charge the jury on the defence of mistake of fact, it would be necessary to do so in all cases where the complainant denies consent and an accused asserts it.
In Bulmer, supra, McIntyre J. had a further opportunity to explore the defence of mistake and the air of reality requirement. He restated his earlier position (at pp. 789-90):
It is well settled law that in his charge the trial judge must put to the jury all defences that may arise upon the evidence, whether they have been raised by counsel for the defence or not. In doing so, he is obliged to explain the law respecting the defence and to refer the jury to the evidence which may be relevant on that issue. Before putting the defence, however, the trial judge must decide whether in the facts before him the defence arises on the evidence. It is only when he decides this question in favour of the defence that he must leave it to the jury, for a trial judge is not bound to put every defence suggested by counsel in the absence of some evidentiary base. Indeed, he should not do so, for to put a wholly unsupported defence would only cause confusion.
He then continued, at p. 791:
When the defence of mistake of fact -- or for that matter any other defence -- is raised, two distinct steps are involved. The first step for the trial judge is to decide if the defence should be put to the jury. It is on this question, as I have said, that the "air of reality" test is applied.
In a judgment released concurrently (Robertson, supra), Wilson J., writing for the Court, also discussed the air of reality threshold (at p. 933):
Although there has been some difference of view on the Court as to whether the accused's knowledge of lack of consent is to be described as an element of the offence or as a defence of mistake of fact, the Court has been unanimous in its agreement on one proposition -- there must be evidence that gives an air of reality to the accused's argument that he believed the complainant was consenting before the issue goes to the jury.
And further at p. 938:
In my view, the inclusion of s. 244(4) [now s. 265(4)] in the Code makes it clear that the trial judge should not in every case instruct the jury to consider whether the accused had an honest, though mistaken, belief in consent. The trial judge should only give such an instruction when certain threshold requirements have been met. These requirements are totally consistent with the previous case law.
It can be seen that this Court has consistently held that the defence of mistake of fact in a sexual assault trial will be put to the jury so long as it meets the same threshold requirement as that demanded of all defences. The term "air of reality" simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted. If the evidence meets that test then the defence must be put to the jury. This is no more than an example of the basic division of tasks between judge and jury. It is the judge who must determine if evidence sought to be adduced is relevant and admissible. In the same way, it is the judge who determines if there is sufficient evidence adduced to give rise to the defence. If there has been sufficient evidence put forward, then the jury must be given the opportunity to consider that defence along with all the other evidence and other defences left with them in coming to their verdict. See Morgentaler, supra, at p. 659, per Pigeon J.; and Wigmore on Evidence, supra, at p. 976.
The jury system has in general functioned exceptionally well. Its importance has been recognized in s. 11(f) of the Charter. One of the reasons it has functioned so very well is that trial judges have been able to direct the minds of jurors to the essential elements of the offence and to those defences which are applicable. That process should be maintained. The charge to the jury must be directed to the essential elements of the crime with which the accused is charged and defences to it. Speculative defences that are unfounded should not be presented to the jury. To do so would be wrong, confusing, and unnecessarily lengthen jury trials.
In coming to a conclusion as to the sufficiency of the evidence pertaining to a defence, the trial judge must consider all the evidence and all the circumstances. It is only when the totality of the evidence tendered at the trial has been taken into account and considered in the light of all the relevant circumstances that the trial judge will be in a position to make a ruling. See Bulmer, supra, at pp. 790-91, and Squire, supra, at p. 21.
221In addition, the mens rea element does not require that the accused be aware that what they are doing is a crime. The maxim that "ignorance of the law is no excuse" exempts any requirement of such awareness. This maxim is also contained in s. 81 of the Provincial Offence Act, R.S.O. 1990, C. P.33, the governing procedural statute for regulatory offences prosecutions in Ontario, which states that “ignorance of the law” is not a defence:
Ignorance of the law
81 Ignorance of the law by a person who commits an offence is not an excuse for committing the offence.
222However, there are limited exceptions where the underlying belief is due to an officially induced error or to a mistake of fact. In essence, the mistake of fact defence shows an accused person did not possess the "guilty mind" that the law requires for the offence, and that the person had been acting innocently under a mistaken perception. However, for a mens rea offence the mistaken belief must be honest; it does not, however, need to be reasonable. Moreover, a mistake of fact shows that the prosecution had failed to prove the defendant had the necessary guilty mind for the offence.
223Furthermore, in Professor Roach’s textbook, Criminal Law, 3rd ed. (2004) (Toronto, Canada: Irwin Law Inc., 2004), at pp. 132-133, 150 and 152, he notes that the mistake of fact defence depends on the fault element of the specific offence being absent. In other words, Professor Roach explained that the defence operates to raise a reasonable doubt as to whether the accused had the requisite fault element. Moreover, Professor Roach also indicated that where the offence requires a subjective fault element, then it would open up the possibility that an honest but not necessarily reasonable mistake of fact will suffice. Specifically, Professor Roach noted that the issue is what the actual accused had perceived and not what a reasonable person had perceived. However, Professor Roach also stated that the more unreasonable the accused's mistake is viewed, the less likely that the jury will accept it as genuine and honest, but that the ultimate issue is the perceptions of the particular accused. Furthermore, Professor Roach opined that mistake of fact is a controversial defence that conceptually depends on the mens rea of the particular offence, so where subjective awareness of prohibited circumstances is required, the prosecution will not be able to establish the fault element if the accused honestly, but not necessarily reasonably, believes those circumstances do not exist. In addition, when an accused raises a mistake of fact defence, Professor Roach noted that an air of reality must be established and that there be some plausible evidence to support a claim of mistake of fact, since a bare assertion by the accused of a mistaken belief is not sufficient [emphasis is mine below]:
- Fault Elements in Relation to the Defences of Mistake of Fact and Intoxication
Understanding fault elements is sometimes confused by reference to the "defences" of mistake of fact and intoxication. The availability of both defences depends on the fault element of the specific offence being absent. In other words, both defences operate to raise a reasonable doubt as to whether the accused had the requisite fault element rather than the existence of some other factor, such as self-defence, which may excuse or justify the commission of a crime that is committed with the required fault.
Both mistake of fact and intoxication defences are primarily derived from the fault element of the particular offence. …
The derivative nature of the mistake of fact defence is revealed by comparing the availability of the defence for crimes with various and no fault elements. Mistake of fact will not be an issue for an absolute liability offence because the only issue is whether the accused has committed the actus reus. What the particular accused thought or even what a reasonable person in the accused's position would have perceived is not relevant. If objective negligence is the fault element, a mistake of fact will only prevent a conviction if it is one that a reasonable person would have made. In other words, a mistake of fact would have to be honest and reasonable. If the offence requires a subjective fault element, this opens up the possibility that an honest but not necessarily reasonable mistake of fact will suffice. The issue is what the actual accused perceived, not what a reasonable person perceived. The more unreasonable the accused's mistake, the less likely the jury will be to accept it as genuine and honest, but the ultimate issue is the perceptions of the particular accused. As will be seen later in this chapter, it is possible to combine subjective and objective fault elements and require that a mistake of fact be based on reasonable behaviour given the accused's actual subjective knowledge of the circumstances.
Mistake of fact is a controversial defence that conceptually depends on the mens rea of the particular offence. If subjective awareness of prohibited circumstances is required, the Crown will not be able to establish the fault element if the accused honestly, but not necessarily reasonably, believes those circumstances do not exist. On the other hand, if the fault element of the offence requires only that a reasonable person would have recognized the prohibited circumstance or risk, then any defence based on mistake must be honest and reasonable. Finally, even a reasonable mistake of fact would not be a defence to an absolute liability offence. All that would matter would be whether the accused in fact committed the prohibited act.
- Mistake Related to the Degree of Fault
With the rise of subjective mens rea, courts began to recognize the possibility that an accused could have an honest but not necessarily reasonable belief in a state of circumstances that would make his activity innocent. In R. v. Rees, the accused was charged with knowingly contributing to the delinquency of a person under eighteen who he believed to be older. Cartwright J. concluded:
[T]he essential question is whether the belief entertained by the accused is an honest one and that the existence or non-existence of reasonable grounds for such a belief is merely relevant evidence to be weighed by the tribunal of fact in determining such essential question.
He conceded that the issue might be different if Parliament had not used the word "knowingly," or had specifically excluded a mistake about the girl's age as a possible defence. A year later, Cartwright J. acquitted an accused found in possession of an illegal drug because the accused thought that the substance was harmless. He stressed that the offence required subjective mens rea, and that "in a criminal case there is in law no possession without knowledge of the character of the forbidden substance." Two judges dissented, on the basis that Parliament had intended to enact an absolute prohibition of being in possession of the illegal drugs. An absolute liability offence would, of course, allow no defence of mistake of fact. An offence based on negligence would afford a defence of mistake of fact "if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent." As will be seen in chapter 5, a reasonable mistake of fact is necessary when the accused is charged with a regulatory offence that requires strict liability.
a) Establishing an Air of Reality for a Mistake of Fact Defence
Although, the Supreme Court agreed on the conceptual nature of the defence of mistake of fact and its relation to the mens rea of the particular offence, it disagreed on its application in particular cases. In Pappajohn, Dickson J. was in dissent in concluding that the jury should have been instructed to consider the defence of mistake of fact. McIntyre J. for the majority held that the only realistic issue that could arise on the facts of the case was whether there was consent or no consent, not a third option of a mistaken belief in consent. In his view, there should be something more than the accused's assertion that he believed the complainant consented to justify instructing the jury on the mistaken belief defence. In a subsequent case, however, a majority of the Court indicated that there need not be evidence independent of the accused to support a mistake of fact. It was possible that the defence could arise when the accused alleged consent, and the complainant alleged no consent. At the same time, there must be some plausible evidence to support a claim of mistake of fact, and a bare assertion by the accused of a mistaken belief is not sufficient. In one case, a majority of the Court found there to be an air of reality to the defence of mistaken belief in consent when the accused testified to consent and the complainant testified to absence of memory. Both Justices McLachlin and L'Heureux-Dubé dissented on the basis that there was no plausible evidence of ambiguous conduct that could create the basis for the defence of mistake about consent. The controversy about when the jury should be instructed about the defence of mistaken belief in the complainant's consent continues. As will be seen, however, this debate should be influenced by 1992 changes in the Criminal Code that alter the Pappajohn defence of mistake of fact.
224In short, the defendant’s mistake of fact defence, simply stated, is that the defendant had only been testing his level of functional ability on the one occasion on February 22, 2024, and had subjectively believed that he did not have to inform the WSIB of this physical activity of lifting items weighing up to 40 lbs. for about 15 minutes, despite the medical restriction directed by his family physician on February 15, 2024, of not lifting items weighing more than 5 kilograms for more than 5 minutes without taking a break, since after his “one-time-only” test of his abilities to lift and carry objects he had been in pain and that there had been no improvement in his condition. However, based on the video surveillance of the defendant driving a motor vehicle from the City of Brampton to the City of Waterloo and then lifting and carrying desks and cabinets weighing about 40 lbs. for 15 minutes, and the defendant or his motor vehicle being observed at or in the area of the Double AA Woodworking Ltd. premises for several hours on several days, would not support the defendant’s claim that this activity on February 22, 2024, had only been a simple test and that his mistake of fact about not having to inform the WSIB of his activity of driving and lifting and carrying objects weighing 40 lbs. was not “honest” one, especially since the defendant had not been observed on that videotape on February 22, 2024, wincing or showing any distress while lifting and carrying objects weighing up to 40 lbs., and he or his motor vehicle been surveilled and followed to the area of the Double AA Woodworking Ltd. premises on February 15, 22, 23 and 26 of 2024, and had been observed spending significant time at that business. In addition, the defendant did not inform WSIB Investigators Paul Cote and Mike Lagozny on September 12, 2024, when the defendant was providing a statement to them, about his so-called “one-time” test of his functional ability on February 22, 2024, in the City of Waterloo when he had been surveilled and videotaped carrying and lifting objects weighing up to 40 lbs. for 15 minutes without taking a rest break.
(a) The defendant’s mistake of fact defence is a recent fabrication
225In R. v. Stirling, [2008] 1 S.C.R. 272, 2008 SCC 10, Bastarache J. of the Supreme Court of Canada, at paras. 5 and 7, noted that the issue is not the recency of the fabrication, but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony having actually occurred [emphasis is mine below]:
It is well established that prior consistent statements are generally inadmissible (R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629; R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3; R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398). This is because such statements are usually viewed as lacking probative value and being self-serving (Evans, at p. 643). There are, however, several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence (Evans, at p. 643; Simpson, at pp. 22-23). Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made -- it is sufficient that the circumstances of the case reveal that the "apparent position of the opposing party is that there has been a prior contrivance" (Evans, at p. 643). It is also not necessary that a fabrication be particularly "recent", as the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred (R. v. O'Connor (1995), 1995 CanLII 255 (ON CA), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95). Prior consistent statements have probative value in this context where they can illustrate that the witness's story was the same even before a motivation to fabricate arose.
However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness's story did not change as a result of a new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 2004 CanLII 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, "a concocted statement, repeated on more than one occasion, remains concocted"; see also J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313. This case illustrates the importance of this point. The fact that Mr. Harding reported that the appellant was driving on the night of the crash before he launched the civil suit or had charges against him dropped does not in any way confirm that that evidence is not fabricated. All it tells us is that it wasn't fabricated as a result of the civil suit or the dropping of the criminal charges. There thus remains the very real possibility that the evidence was fabricated immediately after the accident when, as the trial judge found, "any reasonable person would recognize there was huge liability facing the driver" (Ruling on voir dire, June 21, 2005, at para. 24). The reality is that even when Mr. Harding made his very first comments about who was driving when the accident occurred, he already had a visible motive to fabricate -- to avoid the clear consequences which faced the driver of the vehicle -- and this potential motive is not in any way rebutted by the consistency of his story. It was therefore necessary for the trial judge to avoid using Mr. Harding's prior statements for the truth of their contents.
226Furthermore, in R. v. O'Connor, 1995 CanLII 255 (ON CA), [1995] O.J. No. 2131, 25 O.R. (3d) 19 (Ont. C.A.), Finlayson J.A. confirmed that the law does not require that an allegation of recent fabrication be made explicitly: the court can look at all the circumstances of the case. Moreover, Finlayson J.A. noted that a suggestion that the accused's story has been recently contrived may also arise implicitly from the whole circumstances of the case, the evidence of the witnesses who have been called, and the conduct of the trial. In addition, Finlayson J.A. opined that an allegation of recent fabrication is no more than an allegation that the complainant has made up a false story to meet the exigencies of the case and that the word "recent" means that the witness’s evidence has been invented or fabricated after the events in question and thus is a "recent" invention or fabrication [emphasis is mine below]:
In my opinion, this is being too clever by half. "Recent" fabrication is by definition a subset of fabrication generally. One may escape this implication by asserting a challenge to the complainant's credibility based on an allegation of fabrication simpliciter, but not when it is coupled with a charge that she had not divulged the fact of the sexual conduct to a person to whom the trier of fact would expect her to complain, i.e., an absence of recent complaint. The law does not require that an allegation of recent fabrication be made explicitly: the court can look at all the circumstances of the case. This last point was resolved by this court in R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673, 38 C.C.C. (2d) 6. Although that case dealt with an allegation of recent fabrication made against an accused, the comments of Martin J.A. at p. 686 O.R., pp. 18-19 C.C.C. are apposite here:
I accept the proposition that an express allegation of recent fabrication in cross-examination is not necessary before the exception with respect to rebutting an allegation of recent fabrication becomes operative, and that a suggestion that the accused's story has been recently contrived may also arise implicitly from the whole circumstances of the case, the evidence of the witnesses who have been called, and the conduct of the trial. Where the circumstances are such as to raise the suggestion that the accused's evidence is a recent fabrication, counsel may properly anticipate the allegation of recent fabrication, in cross-examination, and examine the accused in chief with respect to previous statements to other persons, prior to his being cross-examined.
In this case the whole thrust of the cross-examination relating to Jenny Lamb and the sister Kelly was structured so as to establish the lack of an early complaint to someone whom the trial judge would expect a complaint to be made under the circumstances. The questions as to why no complaints were made were restricted as to person and to time but with the object of leaving the impression that there were no complaints whatsoever. As such, the questioning was designed to give rise to an inference that the complaint was formulated subsequent to the event recounted in her testimony at trial. It clearly implied what is, by any other name, an allegation of recent fabrication. This point is articulated by Wigmore in Evidence in Trials at Common Law (Chadbourne rev.), vol. 4 (Toronto: Little, Brown and Co., 1972), at pp. 270-71:
The charge of recent contrivance is usually made, not so much by affirmative evidence, as by negative evidence that the witness did not speak of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now i.e., as a self contradiction. The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story.
I am of the view that an allegation of recent fabrication is no more than an allegation that the complainant has made up a false story to meet the exigencies of the case. The word "recent" means that the complainant's evidence has been invented or fabricated after the events in question and thus is a "recent" invention or fabrication: see Wigmore, p. 274:
Of course, if the word "recent" in this court's formulation of the exception, in the case above cited, means that the witness's statement at the trial must have been assailed as being fabricated at some point before the trial, this was no case for applying the exception. But we think that "recent" as so used, has a relative, not an absolute meaning. It means, we think, that the defense is charging the witness, not with mistake or confusion, but with making up a false story well after the event (see Commonwealth v. Retkovitz, 222 Mass. 245, 250). "Recently fabricated" means the same thing as fabricated to meet the exigencies of the case (see Judge Werner's discussion in People v. Katz, 209 N.Y. 311 at p. 340). Judge Hand in DiCarlo v. United States (6 F.2d 364, 366), after careful examination of authorities and reasons, stated the exception thus: "that, when the veracity of a witness is subject to challenge because of motive to fabricate, it is competent to put in evidence statements made by him consistent with what he says on the stand, made before the motive arose."
In the case on appeal, I do not accept the submission that there was no allegation of recent fabrication. There was not one initially and the trial judge gave effect to the defence objection and instructed himself that the attempt to lead evidence in rebuttal of such an allegation was premature. However, the subsequent cross-examination of the complainant permitted the introduction of the evidence of consistent statements. Additionally, the conversation at the cafe involving Cynthia Collins and Kelly was, in my opinion, an integral step in explaining how the matter was brought to the attention of the authorities. As such, the complainant's statements were admissible as part of the narrative of the case: see R. v. Fair, supra, at p. 16 O.R., p. 472 C.C.C. Consequently, it is only the complainant's reference to her report of her abuse to Tanya Kronschnabl that requires an allegation of recent fabrication to justify its admissibility. As indicated, I am satisfied that such an allegation was made. I conclude that the rulings of the trial judge were correct and his use of the statements elicited were in accordance with the principle that he could only rely on the facts of the complaints, not the truth of their contents, in assessing the credibility of the complaint.
227Ergo, when an accused person does not give a defense like an alibi or self-defense to an investigator, but only raises it at trial, it becomes a credibility issue, potentially seen as a “recent fabrication”, which can weaken that type of defense, although the prosecution must still prove guilt beyond a reasonable doubt. Moreover, the defendant’s explanation at trial for why he did not report his physical activities of lifting objects up to 40 lbs. on February 22, 2024, to the WSIB, had been that it had only been a test and since he still felt pain afterward, and since there had been no improvement in his injury to his elbows and arms, then the defendant did not believe he had to report this “one-of-a-time” activity to the WSIB.
228But more importantly, at the interview with WSIB Stakeholder Compliance Investigators Paul Cote and Mike Lagozny on September 12, 2024, after the defendant had been shown the video recording of the defendant lifting and carrying objects into a dental office in the City of Waterloo on February 22, 2024, the defendant did not at that time inform the Investigators about the defendant’s “one-of-a-time” test of his functional abilities on February 22, 2024, to determine if he could return to work, when WSIB Investigator Paul Cote at pp. 65 to 66 (line 31 on p. 65 and lines 1 to 3 on p. 66) of the interview transcript entered as Exhibit #20, had asked the defendant, “Did you tell your case manager, you, you were doing things like this?”, to which the defendant answered in the negative and that the defendant did not know why he did not tell the WSIB case manager about that particular activity:
31 Cote: Okay. Did you tell your case manager, you, you were doing things like this
Saad: No.
Cote: Why not?
Saad: I don’t know.
229Hence, the explanation that the defendant had provided at trial on October 31, 2025, that the defendant had only been performing or engaging in an “one-of-a-time” test of his functional abilities on February 22, 2024, to determine if he could return to work, as the reason why he did not tell the WSIB Case Manager about his physical activity of lifting and carrying objects weighing up to 40 lbs. on that date when he had been given the opportunity to provide that explanation of doing an “one-time” test of his functional ability on September 12, 2024, to the WSIB Stakeholder Compliance Investigators, but the defendant did not do so, then his failure to tell the WSIB Investigators about doing this “one-time” test undermines the defendant’s credibility and makes this explanation given at trial appear to be of a “recent fabrication” and not genuine, and may be the result of coaching.
230Consequently, the defence contention that the defendant had an honest and mistaken belief that the defendant did not have to inform the WSIB of his physical activity of driving from the City of Brampton to the City of Waterloo and then carrying and lifting objects that weighed up to 40 lbs. for approximately 15 minutes without taking arrest break because it had been an “one-time-only” test of his functional abilities, but because he had experienced significant pain afterwards and that there had been no improvement in his functional abilities, is not honest or credible, nor persuasive, nor does it create reasonable doubt about the defendant having the requisite mens rea in committing the actus reus of the s. 149(1) offence between January 18, 2024 to February 28, 2024.
(7) Conclusion: the prosecution has proven beyond a reasonable doubt that defendant had the requisite mens rea for committing the actus reus of the s. 149(1) offence
231In sum, the prosecution has proven beyond a reasonable doubt that the defendant had the requisite mens rea for committing the actus reus of the s. 149(1) offence, since the defendant had initiated the claim for WSIB benefits by filing the Form 6 document entitled, “Worker’s Report of Injury/Illness” (see Exhibit #1) on January 15, 2024, and was subsequently granted entitlement on February 2, 2024, to receive WSIB loss of earnings, health care, and return-to-work services benefits, so it can be reasonably inferred as a consequence that the defendant knew that a workplace injury claim provided the defendant with these benefits. Moreover, it can also be reasonably inferred that the defendant also knew that such benefits would continue as long as there had been no improvement in his level of functional ability, since he had informed the WSIB Case Manager several times about the lack of improvement in his level of functional ability and impairment between January 18, 2024 and February 28, 2024, and that his WSIB loss of earnings, health care, and return-to-work services benefits continued to be paid and provided to the defendant after making those representations and statements to the WSIB and to his health professionals. Furthermore, in the WSIB letter dated February 2, 2024, sent to the defendant, the defendant had been provided informed and instructions related to his claim for WSIB benefits. Under the heading, “Reporting material change in circumstances”, it is stated that, “You must report the following changes in your circumstances to us within 10 days of the change, to make sure your benefits are not reduced or stopped: (1) an improvement or worsening in your condition; (2) an increase or decrease in your wages; (3) beginning to get, or changes to your Canada Pension Plan disability benefits; (4) a change in your job duties or hours; and (5) a change in your ability to co-operate in treatment, early and safe return-to-work activities, or work reintegration program. It is also stated that, “Please contact us if you’re not sure whether you need to tell us about a change. We can review the information and decide if we need to make adjustments to your benefits”. Based on this information in the WSIB Letter dated February 2, 2024, the defendant had been made aware that his WSIB benefits could be reduced or stopped if he reported an improvement of his condition, but that reporting the worsening of his condition could also have the opposite effect of not reducing or stopping his WSIB benefits.
232In regards to the defence’s argument that the defendant did not believe that he had to inform the WSIB about his physical activities that he had been engaged in on February 22, 2024, when he had been videotaped carrying and lifting desks and cabinets weighing up to 40 lbs. for about 15 minutes, since the defendant had testified that he had only been doing an “one-time” test of his level of functional ability on February 22, 2024, but that he had felt pain afterwards and that he had perceived that there had been no improvement in his level of functional ability, does not have an “air of reality” considering that he did not inform WSIB Stakeholder Compliance Investigators Paul Cote and Mike Lagozny during his interview and statement given on September 12, 2024, that he had only been doing an “one-time” test of his level of functional ability on February 22, 2024, and only raised it for the first time at trial.
233And, as for the surveillance of the defendant where the defendant had been observed driving to and spending time at the Double AA Woodworking Ltd. premises on February 15, 22, 23, and 26 of 2024, where on one day the defendant had been there for up to 8 hours, as well as the defendant being observed on February 26, 2024, unlocking and locking the door with a key to the Double AA Woodworking Ltd. premises, as well as to the defendant’s testimony that he had only been there to visit his friend and former work colleague and to also learn how to use the computer system used for cutting panels and wood for cabinets, and that he had also been helping his friend and was not being paid, does not necessarily correspond or is consistent with his physical activities captured on video on February 22, 2024, when the defendant was observed driving a Double AA Woodworking Ltd. truck from Brampton to the City of Waterloo and then carrying and lifting desks and cabinets weighing about 40 lbs. into a dental office. In addition, the defence’s submission that the defendant’s desire had been to return back to work at Downsview Woodworking Ltd., since the defendant’s WSIB benefit for loss of earnings that he was receiving had been less than what the defendant would have earned if he had returned to work full-time, and as such, the defence contends that he had no motive to linger and not return to work. However, the defendant’s representations and statements to the WSIB and to his health professionals about the lack of improvement in his level of functional ability and not being able to return to work doing his pre-injury duties or modified duties had been false or misleading, in light of the defendant’s physical activities observed on February 22, 2024, showing he was capable and able to return to work.
234Furthermore, as indicated in the notes in the medical assessments of the defendant’s family physician entered as Exhibit #28, Dr. Mechetiuc had noted that the lack of improvement and severity of the pain and injury to his left and right elbows communicated by the defendant is “subjective” and that the “objective” evidence shows the defendant with "mild lateral epicondylitis" and not severe lateral epicondylitis, which further indicates the defendant’s representations and statements about experiencing no improvement in his functional ability and impairment to the WSIB or to his health professionals is false or misleading.
235Accordingly, on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the s. 149(1) offence and also proven beyond a reasonable doubt that the defendant had the requisite mens rea in committing the actus reuse of the s. 149(1) offence.
(G) THE EXPERT MEDICAL OPINION OF DR. KRIEVENS IS PERSUASIVE
236The defence argues that the expert medical opinion of Dr. Krievens (Exhibit #21) does not address whether a single incident of activity negates months of documented injury, since Dr. Krievens did not personally meet with the defendant and had never physically examined the defendant, and had only based his medical opinion on his review of medical records, tests, and the surveillance video of the defendant, and did not assess the defendant’s pain levels during or after the activities. Moreover, the defence also submits that Dr. Krievens’ expert opinion does not prove that the defendant had the subjective intent to deceive and that the expert medical opinion about physical capabilities does not establish mens rea. Furthermore, the defence contends that Dr. Krievens' opinion only addresses only the actus reus of the offence — whether the activities exceeded restrictions — and does not address and cannot prove the defendant’s subjective state of mind or intent. In addition, the defence argues that the video surveillance of the defendant of February 22, 2024, is evidence of one incident of activity and nothing more.
237However, the one incident of the defendant engaging in strenuous physical activity beyond his restrictions and limitations imposed by his health professionals, combined with what the defendant communicates to his health professionals and to the WSIB before and after that specific physical activity of February 22, 2024, is sufficient proof that the defendant had committed the actus reus of the s. 149(1) offence and is also sufficient proof that the defendant had the requisite mens rea in committing the actus reus of the offence.
238In Dr. Krievens’ expert opinion (see Exhibit #21), Dr. Krievens stated that he had reviewed all the medical information on file, as well as the surveillance video of the defendant’s physical activities, and then opined that these observed functional activities are inconsistent with the physical restrictions and limitations documented in the provided medical records. Furthermore, Dr. Krievens also opined that the surveillance video of the defendant had shown the absence of visible signs of discomfort of compensatory movements while performing these tasks had also raised questions regarding the consistency of reported functional limitations on file, and that these movements do not align with the documented restrictions pertaining to repetitive elbow and wrist movements [emphasis is mine below]:
The actions observed, particularly the lifting and handling of large items, indicate physical activity beyond the restricted 0-5 kg lifting range noted in reports from January through to July 2024. The absence of visible signs of discomfort of compensatory movements while performing these tasks also raised questions regarding the consistency of reported functional limitations on file. Notably, these movements do not align with the documented restrictions pertaining to repetitive elbow and wrist movements […]
Overall, the surveillance video demonstrates multiple instances of the worker engaging in lifting, carrying, and assisting tasks with both hands, including the independent removal of large boxes and items from a vehicle, without observable signs of discomfort or distress. It is this Physician’s opinion that these observed functional activities are inconsistent with the physical restrictions and limitations documented in the provided medical records.
239In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, S.C.J. No. 36, Sopinka J. of the Supreme Court of Canada, at paras. 17 and 18, introduced a principled approach to the admissibility of expert evidence. Justice Sopinka indicated that for expert evidence to be admitted, the following criteria must be met: (a) it must be relevant; (b) it must be necessary to assist the trier of fact; (c) it must not offend and any exclusionary rule; and (d) it must come from a properly qualified expert:
Admission of expert evidence depends on the application of the following criteria:
(a) relevance;
(b) necessity in assisting the trier of fact;
(c) the absence of any exclusionary rule;
(d) a properly qualified expert.
Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule (see Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing the admissibility of expert evidence.
240In addition, the expert’s qualifications are established by a voir dire. The party calling the expert must establish that the expert is qualified to give expert evidence on the proposed subject matter. More importantly, the only requirement for the admission of expert opinion is that the expert witness possesses a special knowledge and experience beyond that of the trier of fact. However, admissibility does not depend on how the expertise was acquired, as academic qualifications are not required in all cases and deficiencies in the expertise would go to weight and not admissibility: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223 (S.C.C.) at para. 35.
241Furthermore, in R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394 (S.C.C.) and R. v. Lavallee 1990 CanLII 95 (SCC), [1990] S.C.J. No. 36, 55 C.C.C. (3d) 97 (S.C.C.), the Supreme Court of Canada held that an expert may base his or her opinion on a number of sources. The expert may have first-hand knowledge of the facts underlying the charge, as happens when an accident re-constructionist observes skid marks and testifies about his conclusions of the cause of the accident from them. The expert may also be asked to give an opinion on a hypothetical fact situation, with the hypothetical being based on the facts of the case before the court. The party calling the expert asks the witness to assume the facts the party wants the judge ultimately to conclude and asks the witness to give an expert opinion based on the assumption that those facts are true. No weight can be given to this evidence unless the judge makes the findings of fact on which the hypothetical is based. An expert may also form an opinion based on second-hand knowledge of the investigation from those directly involved. This knowledge is hearsay, but an expert opinion based on it is admissible. However, before a court can give any weight to the expert’s opinion, the facts upon which the opinion is based must be found to exist. In particular, in R. v. Lavallee, [1990] S.C.J. No. 36, at para. 66, Wilson J. held that an expert opinion is admissible if relevant, even if it is based on second-hand evidence [emphasis is mine below]:
For present purposes I think the ratio of Abbey can be distilled into the following propositions:
An expert opinion is admissible if relevant, even if it is based on second-hand evidence.
This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.
Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.
Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.
242Hence, depending on the subject matter it is not necessary for an expert witness to have authored scientific and peer reviewed papers. Expertise can be acquired in many ways by the witness including work experience and many years of experience in the specific area of expertise: R. v. Sutherland, [2010] O.J. No. 1797, 2010 ONSC 2240 (Ont. S.C.), at para. 73; affirmed, [2011] O.J. No. 1295, 2011 ONCA 239 (Ont. C.A.).
243Also, the scope of expertise is a matter to be determined by the trial judge at the outset when making a ruling on the admissibility of the evidence. The obligation is an ongoing one through the course of the trial. It is not enough to simply consider the Mohan criteria at the outset and make an initial ruling on admissibility. The trial judge must also ensure that the expert witness remains within the bounds of his or her expertise and that the evidence itself is properly the subject of expert evidence. Where the expert opinion goes beyond its proper scope, the trial judge must be careful not to assign any weight to the inadmissible portion: R. v. Sekhon, 2014 SCC 15 (S.C.C.).
244Expert witnesses also have a duty to give fair, objective, and non-partisan opinion evidence. If the expert does not meet this threshold the evidence or the parts tainted by lack of independence or impartiality should be excluded. An expert’s testimony recognizing and accepting the duty will generally be sufficient to establish the threshold. The threshold is not onerous and it will be rare that the expert’s evidence would be ruled inadmissible for failing to meet the threshold. The existence of some relationship or interest does not automatically render the evidence inadmissible and neither, in most cases, will a mere employment relationship. This additional threshold requirement is not intended to and should not result in trials becoming longer or more complex: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (S.C.C.).
245Moreover, expert evidence should be, and be seen to be, the independent product of the expert uninfluenced by the exigencies of litigation. An expert should provide independent assistance to the court by objective, and unbiased opinion in relation to matters within his or her expertise. An expert witness should never assume the role of an advocate: R. v. Inco (2006), 2006 CanLII 14962 (ON SC), 80 O.R. (3d) 594 (Ont. S.C.).
246Furthermore, the expert's role is to assist the court by providing an independent and unbiased opinion about the matters coming within the witness's expertise. There is a fundamental tension between the independence required of the expert and the operation of the expert witness within the adversarial system if the expert witness is retained, instructed, and paid for by one of the parties. This immediately raises questions about the expert's required objectivity because it is natural that the expert will want to please the party that hired him, a phenomenon known as adversarial bias. The expert's duty to the court is overriding. Many experts themselves misunderstand this: R. v. Maple Lodge Farms, 2013 ONCJ 535 at para. 42:
Professor Adam Dodek provides a very helpful summary of the purpose of expert witnesses in the scientific field and their ethical obligations:
The expert witness is a special kind of witness. As set out in chapter 1, the traditional common law rule, also applicable in Quebec courts, is that witnesses are not supposed to offer opinions. They are supposed to testify about their personal knowledge of the facts in dispute. The two exceptions to this general exclusionary rule are explained in chapter 1: in certain circumstances, lay witnesses may offer their opinions and the expert witness's testimony is a general exception, provided certain admissibility criteria are met. Thus, the expert is the only type of witness who is generally expected to testify as to his or her opinion.
The expert's role is to assist the court by providing an independent and unbiased opinion about the matters coming within the witness's expertise. The expert witness is in a unique position because the judge without knowledge or expertise in the subject matter may rely on the expert in making a finding that may have significant impact on the parties to the litigation ....
There is a fundamental tension between the independence required of the expert and the operation of the expert witness within the adversarial system. Specifically, the expert witness is usually retained, instructed and paid for by one of the parties. This immediately raises questions about the expert's required objectivity because either consciously or sub-consciously, it is natural that the expert will want to please the party that has hired him, a phenomenon known as adversarial bias.
The common law has long recognized these tensions but also has clearly enunciated that the expert's duty to the court is overriding. As stated by Justice Slatter of the Alberta Court of Appeal, the expert may have multiple, potentially conflicting obligations: "While an expert witness has obligations to his or her client, and his or her professional organization and to the court, the expert's duty to the court is paramount."
Moreover, many experts themselves misunderstand their role. As a leading Canadian text on expert evidence explains:
Attitudes and expectations inherent in the adversarial system foster certain beliefs about the role of the expert witness. Some expert witnesses genuinely view it as their proper role to assist persons employing them by whatever means is enabled by their specialized knowledge. These experts are biased, but not necessarily dishonest. They do, however, overlook their primary duty to assist judges and juries. These expert advocates assist their clients in several ways, including providing opinions outside specialized knowledge or skill; considering irrelevant facts; using scientific evidence with little probative value; failing to consider alternative explanations; failing to disclose facts, documents or errors; failing to communicate limitations; overstating probative value and using potentially misleading language.
247Concerns related to the expert’s duty to the court and willingness and capacity to comply with it are best addressed in the “qualified expert” element of the Mohan framework. A proposed expert unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert. This does not end the inquiry, however. Concerns about the expert’s independence and impartiality must still be taken into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.
248Ergo, since an expert may form an opinion based on second-hand knowledge of the investigation from those directly involved, a medical expert, such as Dr. Krievens, does not necessarily have to assess the defendant personally for their opinion to be accepted as persuasive at trial. Therefore, an expert's opinion can be admissible even if it is based on second-hand information, such as medical records or other evidence, provided that the foundational facts are established and the expert is properly qualified. The admissibility and weight of an expert's opinion depend on several factors, not solely on whether a personal medical examination was conducted. For Dr. Krievens’ expert opinion to be admissible, the opinion must be relevant to the issues at trial and necessary to assist the court or trier-of-fact in understanding complex information beyond their general knowledge; that Dr. Krievens must be a properly qualified expert with special knowledge, skill, training, and experience in the relevant field and that Dr. Krievens’ expert opinion must be based on facts that are proven or found to exist in the evidence. However, if Dr. Krievens’ opinion relies on information not personally observed but on hearsay, that information is admitted to show the basis of the opinion, not necessarily for the truth of the facts themselves and the weight given to the opinion may be affected if the underlying facts are disputed. More importantly, the expert has an overriding duty to the court to provide evidence that is objective, impartial, and non-partisan, regardless of who retained them. A lack of impartiality can lead to the exclusion of the expert’s evidence.
249In sum, while a personal medical assessment would provide a strong basis for a medical expert's opinion, since the medical expert would have firsthand knowledge, it is not a strict legal requirement for admissibility. The court ultimately acts as a gatekeeper, evaluating the expert's qualifications, the relevance of the testimony, and the reliability of the information the expert had used to form their opinion. As such, the absence of a personal examination of the defendant by Dr. Krievens generally goes to the weight the court or trier-of-fact gives to the evidence, rather than its initial admissibility. Consequently, Dr. Matthew Krievens has the relevant qualifications of experience, knowledge, and educational background to provide an expert medical opinion about whether the defendant’s functional ability as captured on the surveillance video of February 22, 2024 and the objective medical test results of the defendant aligns with the defendant’s subjective representations of his functional ability made to the defendant’s health professionals and the defendant’s limitations and restrictions levied by his health professionals, as outlined in the defendant’s medical reports provided to the WSIB between January 18, 2024 to February 28, 2024.
(H) CREDIBILITY OF THE WITNESSES WHO TESTIFIED AT TRIAL
250The prosecution’s witnesses, WSIB Case Manager Sabiha Kazi and WSIB Return-To-Work Specialist Melissa Kerswell were forthright and credible. In addition, they were truthful, consistent in their testimony, and did not show a bias towards the defendant.
251However, the defendant has not been a credible witness. There have been several instances when the defendant’s testimony has not been credible. For instance, the defendant had testified that he had requested an interpreter many times when speaking with WSIB Case Manager Kazi, but that the WSIB had not provided him with one, which is contradicted by WSIB Case Manager Kazi who testified that the defendant did not request an interpreter at any time in her conversations with the defendant and the defendant’s testimony is further contradicted by page 6 in memorandum #A0011, dated February 6, 2024 (see Exhibit #2), which had been prepared by WSIB Case Manager Kazi the next day after her conversation with the defendant on February 5, 2024. On page 6 of that memorandum, WSIB Case Manager Kazi noted the word “No” under the heading, “Interpreter Requested”. The information contained in the February 6, 2024 memorandum is more accurate and reliable than the testimony given by the defendant some 20 months after the memorandum had been prepared, especially when the conversation between WSIB Case Manager Kazi and the defendant had still been fresh in WSIB Case Manager Kazi’s mind at the time the memorandum had been prepared.
252In addition, the defendant has not been credible in his testimony about his comprehension and command of the English language, considering that the defendant at trial had answered several questions in the English language, and not in the Arabic language, before the question in the English language had even been translated to him by the Arabic interpreter into the Arabic language, and as the defendant had also done in his interview with the WSIB Investigators on September 12, 2024, the defendant had also answered several questions in the English language, and not in the Arabic language, before the questions in the English language had even been translated to him by the Arabic interpreter into the Arabic language.
253Furthermore, the defendant’s claim of a mistake of fact, that when he had been unloading and carrying desks and cabinets weighing approximately 40 lbs. from a Double AA Woodworking truck on February 22, 2024, in the City of Waterloo for about 15 minutes, that he had been simply doing an “one-time” test of his functional ability to ascertain if he could be able to return to work and did not believe that he had to inform the WSIB about this physical activity because he had felt severe pain afterwards and did not perceive any improvement in his condition, had not been told to WSIB Stakeholder Compliance Investigators Paul Cote and Mike Lagozny on September 12, 2024, and had only been first mentioned at trial on October 31, 2025, that the defendant had only been doing an “one-time” test on February 22, 2024, of his functional abilities to see if he had been able to return to work. Hence, similar to when an accused person does not give a defense like an alibi or self-defense to an investigator earlier, but only raises it at trial, it then becomes a credibility issue and is potentially seen as a “recent fabrication”, which can weaken that type of defense. Accordingly, even though the prosecution must still prove guilt beyond a reasonable doubt, the defendant’s explanation and mistaken belief he first gave at trial for why he did not report his strenuous physical activities of lifting objects up to 40 lbs. on February 22, 2024, to the WSIB, is also not plausible, credible or convincing and is a recent fabrication.
(I) CONCLUSION
254The defendant’s testimony at trial has not been credible. It was self-serving, illogical, and implausible. It was also contradicted by objective evidence which had consisted of the surveillance video and surveillance report from the private investigation firm surveilling the defendant between February 10, 2024 and February 26, 2024, and by the expert medical opinion of Dr. Matthew Krievens. Moreover, the defendant’s testimony is not persuasive nor does it create any reasonable doubt about the defendant’s guilt in committing the s. 149(1) offence.
255In addition, the defence’s argument that the failure of the WSIB to provide the defendant with an Arabic interpreter for his dealings and conversations with WSIB staff and with his health professionals would effectively negate the actus reus and mens rea elements of the s. 149(1) offence being committed by the defendant is not persuasive or convincing, nor does it create reasonable doubt. Moreover, the contention that the defendant had requested an Arabic interpreter when he spoke with WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell is also not credible, as both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell prepared memorandums shortly after speaking with the defendant when the substance of their conversations and interactions were still fresh in their minds, and neither of them had noted in their memorandums that the defendant had requested an Arabic interpreter. On the other hand, the defendant’s memory is not as fresh as when the memorandums were created in January and February of 2024, as the defendant had testified at trial some 20 months after speaking with them about supposedly making such a request several times to them for an interpreter, but they did not provide him with one.
256And, with respect to the defence claim about the defendant’s lack of proficiency and comprehension in the English language, it is not as weak as the defence contends it is. Hence, the defence argument regarding the defendant’s lack of proficiency in the English language is also not persuasive or convincing, considering that the defendant has resided in Canada for seven years; that while the defendant was testifying at trial and while being interviewed by WSIB Investigators on September 12, 2024, he had answered questions on both occasions using words in the English language instead of answering in the Arabic language and without waiting for a question in the English language to be interpreted into the Arabic language; and that both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell had testified that they had no difficulty in understanding and communicating with the defendant in the English language and that no interpreter had been needed to understand and communicate with the defendant. Moreover, both WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell when asked where they would place the defendant’s ability to communicate in the English language on a scale of 1 to 3, with 1 being “very poor” and 3 being “very good”, both testified that the defendant was a “3”, or “very good”, on that scale. In addition, there is no evidence that the defendant could not understand or communicate with his physicians or with the physiotherapists, considering that health professionals are ethically and legally required to use interpreters in medical assessments or when prescribing treatment or medications if the health professionals cannot understand or communicate with their patients, in order to ensure patient safety and to ensure that there is informed consent to treatment.
257And, with respect to whether the prosecution has proven beyond a reasonable doubt that the defendant had committed the actus reus of the s. 149(1) offence, the prosecution has proven beyond a reasonable doubt that the defendant had made a representation or a statement about his functional ability that had concerned the defendant’s claim for benefits under the insurance plan to the WSIB and to his health professionals between January 18, 2024 to February 28, 2024, in the City of Mississauga, and that the defendant’s representation or statement about his functional ability that had concerned the defendant’s claim for benefits under the insurance plan to the WSIB and to his health professionals were false or misleading. The specific representations or statements concerning the defendant’s claim for benefits that were made to WSIB Case Manager Kazi and WSIB Return-To-Work Specialist Kerswell had been that the defendant had been unable to return to work because there had been no improvement in his functional ability and that he was still experiencing pain, and that he had seen minimal improvements, had experienced numbness in his fingers, had found it difficult to complete daily activities of daily living at home, such as vacuuming, and had also reported that he would stay home all day and rest, and the defendant had also reported having difficulty with lifting and holding a telephone for more than 30 seconds and so did not do any lifting at home. In particular, on February 23, 2024, WSIB Case Manager Kazi noted that for the defendant’s health recovery that the defendant is not improving with treatment and/or symptoms were not well controlled and that the defendant had reported no changes since their last conversation and no improvements in respect to activities of daily living. Furthermore, on February 23, 2024, WSIB Return-To-Work Specialist Kerswell had a conversation with the defendant and noted that the defendant had full abilities in walking, standing and sitting and bending/ twisting and that lifting was very limited to 2lbs. but requires ongoing break after 5 minutes and that for push/pull functional ability it was very limited to 2 lbs. but requires ongoing break after 5 minutes and that the defendant had the ability to drive but could not operate heavy equipment. In addition, the defendant made representations or statements to his health professionals that he had been in a lot of pain in respect to his left elbow and that he cannot lift or pull anything with his left arm. In addition, on February 14, 2024, Physiotherapist Srivastava had noted that the defendant had been unable to perform his job duties because it had been making his symptoms worst and that the defendant was still not able to do his job related duties and that the estimated time frame for abilities and restrictions is “2 weeks+”, and that the defendant’s abilities and restrictions for return-to-work planning included full abilities in walking, standing, sitting, and ability to drive a car and to use public transit, but that the defendant had been limited in lifting from floor to waist from 0 to 5 kg., limited to do lifting from waist to shoulder from 0 to 5 kg., and limited to do lifting above shoulder from 0 to 5 kg., and that the defendant was not ready to do any pushing/pulling. In addition, on February 15, 2024, Dr. Adriana Mechetiuc noted in the defendant’s medical records that the defendant cannot lift more than 2 lbs. and has pain in both elbows radiating to his fingers and that the defendant feels numbness. Then on February 24, 2204, Dr. Adriana Mechetiuc in the Functional Abilities Form noted that the defendant’s abilities and restrictions included full abilities in walking, standing, sitting, stair climbing, ladder climbing, and the ability to drive a car but less than 10 kilometers, and the ability to use public transit, but that the defendant had been limited in lifting from floor to waist up to 5 lbs., limited to do lifting from waist to shoulder up to 5 lbs., and that the defendant was limited in pushing/pulling with his left and right arm and restricted in operating motorized equipment, such as a forklift.
258The defendant’s representations or statements about his functional ability to the WSIB and to his health professionals were false or misleading because the defendant’s health professionals had restricted and limited the defendant in not driving a motor vehicle for more than 10 kms and not to lift objects weighing more than 5 kg. without taking a rest break, yet the surveillance video and surveillance report from the private investigation firm surveilling the defendant between February 10, 2024 and February 26, 2024, showed the defendant driving more than 10 kms. on several occasions and carrying and lifting objects weighing up to 40 lbs. for approximately 15 minutes without showing signs of discomfort or pain on February 22, 2024, and spending several days at the Double AA Woodworking Ltd. premises for many hours on February 15, 22, 23 and 26 of 2024, which is evidence beyond a reasonable doubt that proves the defendant had the functional ability to return to work doing his pre-injury duties.
259Moreover, Dr. Matthew Krievens, who is a medical expert, and despite the defendant not being personally seen or physically examined and assessed by Dr. Krievens, Dr. Krievens’ expert medical opinion about the defendant had been based on Dr. Krievens seeing the video recording of the defendant lifting objects weighing approximately 40 lbs. on February 22, 2024, and reviewing the medical reports from his physicians and physiotherapists. Dr. Krievens’ expert medical opinion is persuasive and supports the proposition that the defendant’s activities on February 22, 2024, did not align with the medical reports and that the defendant may have not been forthright with his physicians or physiotherapists, or forthright to WSIB Case Manager Kazi or to WSIB Return-To-Work Specialist Kerswell about his level of functional ability, his impairment, and his ability to return to work. Ergo, Dr. Matthew Krievens’ medical report and expert opinion is convincing and is evidence that supports the prosecution’s contention that the defendant knowingly misrepresented his level of function to his physicians, physiotherapists, and to WSIB Case Manager Kazi and to WSIB Return-To-Work Specialist Kerswell between January 18, 2024 to February 28, 2024 in the City of Mississauga.
260Ergo, based on the constellation of circumstantial evidence adduced at trial the prosecution has proven beyond a reasonable doubt that the defendant had committed the actus reus of the s. 149(1) offence by misrepresenting his level of impairment and functional ability directly to his WSIB Case Manager, to his WSIB Return-To-Work Specialist, and to his health professionals in connection to his claim for benefits from the insurance plan between January 18, 2024 and February 28, 2024 in the City of Mississauga.
261Furthermore, the prosecution has also proven beyond a reasonable doubt that the defendant had the requisite mental fault or mens rea in committing the actus reus of the s. 149(1) offence, since it had been the defendant, on his own volition, who had initiated his claim for WSIB benefits when he had filed his Form 6 (Worker’s Report Of Injury Or Illness) claim with the WSIB on January 15, 2024, then attended his family physician to prepare the Form 8 (Health Professional’s Report dated January 15, 2024), in which the defendant had described his pain and injury to his left elbow and arm. In addition, the defendant then reported to his family physician on February 6, 2024, that he also felt the same pain in his right elbow that he had felt in his left elbow. And, because the defendant had then been consequently granted entitlement to loss of earnings, health care and return-to-work services benefits on February 2, 2024, by the WSIB for his workplace injury, that had been based on the defendant’s statements or representations to the WSIB and to his family physician about the cause of his injury and in having pain in both his left and right elbows from repetitive movements of lifting, carrying and pushing wood boards and lumber at his workplace, it can be reasonably inferred that the defendant had been aware and had knowledge that it had been his workplace injury and the description of his health condition and his injuries to both elbows that he had represented to the WSIB and to his health professionals had been the reason why he had received loss of employment and other benefits from the WSIB, and that by further representing or stating the lack of improvement to his left and right elbow injuries or to his functional ability to the WSIB of to his health professionals would also allow him to continue to receive loss of earnings, health care and return-to-work services benefits from the WSIB.
262Ergo, the defendant had the knowledge or subjective awareness that he had received WSIB benefits, which included loss of earnings benefits because he had initially reported an injury to his left elbow and that he also knew that he had to attend medical appointments with his family physician and his physiotherapist, who asked him about his injury and the level of his functional ability in lifting, carrying, pushing and pulling, and he also knew that medical reports had been sent to the WSIB about his left and right elbow injuries, and that the WSIB Case Manager would ask him about any improvements to his left and right elbows so that he could return to work. Therefore, it can be reasonably inferred that the defendant knew that having no improvement in his left and right elbow or his functional ability and claiming continuing pain in both elbows would also mean his WSIB benefits would continue. In addition, the WSIB had sent 4 letters to the defendant (January 20, 2024, February 2, 2024, March 7, 2024, and March 14, 2024) that had advised the defendant in those 4 letters under the heading, “Reporting material change in circumstances”, that, “You must report the following changes in your circumstances to us within 10 days of the change, to make sure your benefits are not reduced or stopped: (1) an improvement or worsening in your condition; (2) an increase or decrease in your wages; (3) beginning to get, or changes to your Canada Pension Plan disability benefits; (4) a change in your job duties or hours; and (5) a change in your ability to co-operate in treatment, early and safe return-to-work activities, or work reintegration program”. It is also stated that, “Please contact us if you’re not sure whether you need to tell us about a change. We can review the information and decide if we need to make adjustments to your benefits”. More importantly, two of those 4 WSIB letters sent to the defendant had been dated January 20, 2024 and February 2, 2024, which had been before February 22, 2024, when the defendant had been videotaped carrying and lifting objects weighing up to 40 lbs. for 15 minutes and for driving a motor vehicle continuously for more than 10 kms.
263Moreover, there is no legal onus on the prosecution to prove that the defendant had been aware of his obligation to inform the WSIB of the improvement in his ability to push, pull or lift objects of 40 lbs., since the defendant has not been charged with the offence under s. 149(2) of “failing to inform the WSIB of this material change within 10 days of such change occurring”.
264In addition, the defendant had also testified that he had used the Google Translate software application to translate the Form 6 claim document from English to Arabic, and also had the assistance of his friend, named Sam, from Double AA Woodworking Ltd., and his wife to assist the defendant in translating the documents, correspondence, and letters that he would receive from the WSIB. As such, the defendant who had an obligation to understand what was contained in any documents sent to him by the WSIB or to have documents that had been sent to him by the WSIB be translated to him by his friends or through the Google Translate software application. More importantly, the defendant cannot sit passively and then come to court and plead at trial that he did not know that he had an obligation to do something or that he had to inform the WSIB about something if the defendant had made no effort to determine what had been contained in any letters sent to him by the WSIB that had informed and explained to the defendant to report any changes in his functional ability to the WSIB. That would be wilful blindness on the part of the defendant in not wanting to know what had been contained in any letters, correspondence, or documents that the WSIB had sent to him.
265Ergo, the defendant had knowledge that his representations and statements about having minimal or no improvements to his functional ability, that he had been experiencing numbness in his fingers and finding it difficult to complete daily activities of daily living at home, such as vacuuming, and that he had also reported that he would stay home all day and rest, and that the defendant had also reported having difficulty with lifting and holding a telephone for more than 30 seconds and so did not do any lifting at home, that he had made to his health professionals and to the WSIB Case Manager and to the WSIB Return-To-Work Specialist were false or misleading and not true, since the defendant when he had made those statements and representations to the WSIB between January 18, 2024 and February 28, 2024, the defendant knew or had been aware that he had the capability and ability to lift and carry objects weighing up to 40 lbs. for 15 minutes without taking a rest break and that he could drive continuously for more than 10 kms. Furthermore, the defendant knew or had the subjective awareness that he had been spending many hours away from his residence and spending time over several days in February of 2024 at the Double AA Woodworking Ltd. premises and engaging in strenuous physical activities and driving a motor vehicle continuously for more than 10 kms. between January 18, 2024 and February 28, 2024, as evidenced by the surveillance report and the surveillance video of the defendant of February 22, 2024, that had also shown the defendant lifting and carry objects weighing up to 40 lbs. for 15 minutes without taking a rest break and that he had the capability to drive continuously for more than 10 kms. from his residence in the City of Mississauga to the Double AA Woodworking Ltd. premises in the City of Brampton on February 26, 2024, after Dr. Mechetiuc had limited and restricted the defendant to driving a motor vehicle for not more than 10 kms. on February 24, 2024.
266Furthermore, the defendant’s mistake of fact contention that he had only be doing an “one-time” test of his functional abilities on February 22, 2024, and because he felt pain afterwards and had perceived no improvement in his functional ability, the defendant did not believe he had to inform the WSIB of engaging in strenuous physical activities or the significant change or improvement in his level of function that ensued on February 22, 2024, is a recent fabrication, nor is it credible and does not have an air of reality because the defendant did not inform the WSIB Investigators during their interview on September 12, 2024, when he had been shown the February 22, 2024 video of him lifting and carrying objects weighing up to 40 lbs. and had been asked about his functional ability, and had only raised this so-called “one-time” test of his functional abilities for the first time at trial. Furthermore, the defendant’s contention that the defendant’s physical activities of lifting and carrying objects weighing up to 40 lbs. had only been an “one-time” test of his functional abilities is also not credible, since the defendant did not do this test of his functional abilities in front of his physiotherapist, who had been treating the defendant, nor did the defendant obtain medical approval from his health professionals to undertake in such a strenuous physical activity that could negatively affect his recovery before he had engaged in that physical activity on February 22, 2024.
267Also, in considering the number of days the defendant had been surveilled and observed attending the Double AA Woodworking Ltd. premises and remaining there for many hours on several days, despite communicating to his WSIB Case Manager that he had seen minimal or no improvements to his functional ability, that he had experienced numbness in his fingers, that he had found it difficult to complete daily activities of daily living at home, such as vacuuming, and had also reported that he would stay home all day and rest, and that the defendant had also reported having difficulty with lifting and holding a telephone for more than 30 seconds and so the defendant did not do any lifting at home, is also evidence that the defendant knew or had been subjectively aware that his representation or statements about his functional ability to the WSIB and to his health professionals had been false or misleading. But more importantly, the videotape recording (Exhibit #10) taken on February 22, 2024, shows that the defendant had the functional ability to pull and lift objects of at least 40 lbs. over a period of 15 minutes, despite the medical reports indicating that the defendant had been unable to return back to work to perform his pre-injury duties as a CNC Machine Operator and forklift driver at Downsview Woodworking Ltd. because of his inability to push, pull, or lift more than 5 kg., which demonstrates that he may no longer need the health care or rehabilitative services provided to him by the WSIB. In sum, the defendant’s testimony does not create a reasonable doubt that the defendant had committed the offence of “knowingly” making a false or misleading statement or representation about his functional ability to the WSIB in connection to a claim for benefits between January 18, 2024 to February 28, 2024.
268Accordingly, the prosecution has proven beyond a reasonable doubt that the actus reus of the offence set out in s. 149(1) had been committed by the defendant and that he had the requisite mens rea in committing the actus reus of the s. 149(1) offence.
8. DISPOSITION
269Therefore, based on the totality of the evidence, the prosecution has fulfilled its burden in proving beyond a reasonable doubt that the defendant, Saad Sameer Jirjees Alshamas Ashaq, has committed the offence of “knowingly making a false or misleading statement or representation about his functional ability to the WSIB in connection to a claim for benefits” between January 18th, 2024 and February 28th, 2024, at the City of Mississauga, contrary to s. 149(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A.
270Accordingly, a conviction will be entered against the defendant, Saad Sameer Jirjees Alshamas Ashaq.
Dated at the City of Brampton on March 2, 2026.
QUON J.P.
Ontario Court of Justice