Her Majesty the Queen (Workplace Safety and Insurance Board) v. Curtis et al.
[Indexed as: Workplace Safety and Insurance Board v. Curtis]
Ontario Reports
Court of Appeal for Ontario
Sharpe, Pardu and Fairburn JJ.A.
May 10, 2018
143 O.R. (3d) 532 | 2018 ONCA 441
Case Summary
Workers compensation — Offences — Intent — Injured worker committing offence under s. 149(2) of Workplace Safety and Insurance Act of wilfully failing to inform Workplace Safety and Insurance Board of material change in circumstances in connection with his entitlement to benefits only where worker intended to receive benefits to which he was not entitled or subjectively knew that such result was substantially certain to follow — Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, s. 149(2).
SK was acquitted of wilfully failing to inform the Workplace Safety and Insurance Board of a material change in circumstances in connection with his entitlement to benefits contrary to s. 149(2) of the Workplace Safety and Insurance Act, 1997. The appeal judge overturned the acquittal and ordered a new trial. DC and DK were both convicted of an offence under s. 149(2), and their convictions were affirmed on appeal. All three defendants appealed. The appeals were heard together with a view to clarifying the conflicting jurisprudence about the mens rea required to sustain a conviction for an offence under s. 149(2). The board took the position that subjective awareness of a significant change in circumstances and intentional failure to report that change is sufficient to establish the mental element for the offence, and that no aspect of the mental element requires any foresight or intention in relation to entitlement to benefits.
Held, the appeals should be allowed.
"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. Injured workers are a vulnerable group. Some may suffer traumatic stress injuries and lasting mental illness such as depression. Others may suffer traumatic head injuries which leave them with permanent cognitive impairment. Still others 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. Where the offence is committed because of a failure to act, a 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 was not entitled, or subjectively knew that such a result was substantially certain to follow. 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, knows that there has been a material change likely to affect his or her entitlement to benefits, but deliberately chooses not to make inquiries which would fix him or her with knowledge, so that he or she can deny knowledge.
Other cases referred to
Statutes referred to
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, ss. 149(2), 158
Authorities referred to
Ontario, Legislative Assembly, Official Report of Debates (Hansard), 36th Parl., 1st Sess. (November 14, 1995)
Ontario, Legislative Assembly, Standing Committee of Resources Development, Consideration of Bill 15, 36th Parl., 1st Sess. (November 27, 1995 and December 11, 1995)
Parties and Counsel
APPEAL by SK from the judgment of Zuker J. of the Ontario Court of Justice, delivered May 5, 2015, overturning the acquittal entered by M.A. Ross Hendriks J. of the Ontario Court of Justice dated May 20, 2014
APPEAL by DK from the judgment of Schwarzl J. of the Ontario Court of Justice dated February 19, 2016, upholding the conviction imposed by R. Quon J. of the Ontario Court of Justice dated December 6, 2011
APPEAL by DC from the judgment of Gage J. of the Ontario Court of Justice delivered February 27, 2016, upholding the conviction imposed by M.H. Baker J. of the Ontario Court of Justice delivered February 21, 2014
Counsel:
- David Shulman, for Selvamenan Kathirkamapillai
- Andrew Bigioni, for Douglas Koomson
- David Curtis and Mark Wiffen, amicus for David Curtis
- Rob Boswell and Jeffrey Clarke, for respondent
The judgment of the court was delivered by
Judgment
[1] Introduction
PARDU J.A.: — These three appeals have been heard together with a view to clarifying the conflicting jurisprudence about the mens rea, the mental element required to sustain a conviction for an offence under s. 149(2) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A ("WSIA"). That subsection makes it an offence for an injured worker to fail to inform the Workplace Safety and Insurance Board ("WSIB" or "board") of a material change in circumstances in connection with his or her entitlement to benefits.
Statutory Context
[2] The WSIB
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.
[3] Appeal Mechanisms
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 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.
[4] Judicial Review
A claimant has no right of appeal from a decision of the WSIAT. Any further appeal must be made by application for judicial review.
[5] The Offence
Section 149(2) of the WSIA provides that a "person who wilfully fails to inform the Board of a material change in circumstances in connection with his or her entitlement to benefits . . . is guilty of an offence".
Positions of the Parties
[6] WSIB's Position
The WSIB takes the position that the actus reus of the offence is established when an injured worker experiences a significant change in his or her health, income or employment status and fails to report that change to the board. It submits that subjective awareness and intentional failure to report that there has been such a significant change is sufficient to establish the mental element for the offence, and that no aspect of the mental element requires any foresight or intention in relation to entitlement to benefits. Thus, for example, the board argues that a worker who has suffered a traumatic head injury and is disabled by twice weekly migraine headaches would commit an offence if the worker failed to report any decrease or even increase in frequency of the headaches to the board, even though that change would not reduce any of the benefits to which the worker was entitled.
[7] Appellants' Position
The appellants, on the other hand, submit that the prosecution must prove that the accused knew that a material change in his or her circumstances has occurred, intends not to inform the WSIB of the change and foresees that by the failure to inform the WSIB, he or she is certain or substantially certain to receive benefits to which he or she is not entitled.
Analysis
Statutory Language
[8] The Text of the Offence
I begin my analysis with the language of the section:
149(2) A person who wilfully fails to inform the Board of a material change in circumstances in connection with his or her entitlement to benefits within 10 days after the change occurs is guilty of an offence.
[9] Penalties
Section 158 provides that a person who commits the offence is liable to a fine up to $25,000 or to imprisonment for up to six months, or to both.
[10] Meaning of "Wilfully"
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] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 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] 2 S.C.R. 941, [1989] S.C.J. No. 105, at para. 13.
[11] Material Change in Connection with Entitlement
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
[12] Anti-Fraud Intent
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.
[13] Minister's Statement
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)).
[14] Standing Committee Discussion
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. (November 27, 1995 and December 11, 1995) (Mr. John R. Baird).
Factual Context
[15] Vulnerability of Injured Workers
Injured workers are a vulnerable group. Some may suffer traumatic stress injuries and lasting mental illness such as depression. Others may suffer traumatic head injuries which leave them with permanent cognitive impairment. Others 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.
[16] Required Mens Rea
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.
[17] WSIB's Powers
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.
[18] Analogy to Tax Evasion
This offence is analogous to the offence of tax evasion, described in R. v. Klundert, [2004] O.J. No. 3515, 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 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.
[19] Tax Evasion Test
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 virtually certain consequence of his actions.
(Citation omitted)
[20] Required Elements for Conviction
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:
(1) 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;
(2) the accused intended not to inform the WSIB of that change; and
(3) 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.
[21] Inference of Mental State
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.
[22] Mistaken Belief and Willful Blindness
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 has 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] 1 S.C.R. 411, [2010] S.C.J. No. 13, 2010 SCC 13, at paras. 21 and 23.
Individual Appeals
[23] Overview
I turn now to a consideration of the individual appeals.
[24] Standard of Review
There is no dispute that identification of the correct mens rea to support conviction under s. 149(2) of the WSIA is reviewed on a standard of correctness.
Selvamenan Kathirkamapillai
[25] The Injury
On February 14, 2005, a heavy metal sprocket landed on Mr. Kathirkamapillai's foot, shattering the bones. He was confined to a wheelchair for two years. The physical injuries triggered a post-traumatic stress disorder recognized as a permanent impairment. He suffered from physical pain and difficulty walking. Mr. Kathirkamapillai was granted full loss of earnings benefits by the WSIB, on the basis that he could not return to any kind of work.
[26] Medical Recommendations
On October 10, 2006, the Toronto Western Hospital WSIB Foot and Ankle Specialty Program recommended the following permanent precautions for Mr. Kathirkamapillai:
- Sedentary duties with no load handling
- Standing on a "rarely" basis
- Walking on a "rarely" basis
- No low level work
- No repetitive squatting
- No ladder climbing
- Stair climbing on a "rarely" basis
- Continued regular psychological counselling with Dr. Smith, at Dr. Smith's discretion
- Follow-up with Dr. J. Lau if he wishes to consider surgical options discussed previously i.e. below knee amputation.
[27] Driving Not Restricted
There was no recommendation that he not drive.
[28] Reported Activities and Medications
In May 2011, the appellant told a case manager he could not walk for more than 100 metres or sit for long. In July 2011, the appellant advised a medical consultant that he was on numerous and very sedating medications. In August 2011, the appellant told the case manager on the telephone that he did not drive. On another occasion he said he used his left leg to brake and used cruise control to drive but did not feel safe driving. He indicated that he went out sometimes to go grocery shopping, for banking and to walk short distances. An assessment of his mental health performed at CAMH confirmed the continuing presence of serious psychiatric problems.
[29] Language Barrier
The appellant's first language was not English. There was no indication anyone had ever explained the obligation to report material changes to the Board in any fashion that the appellant could understand.
[30] Surveillance Observations
The board conducted surveillance of the appellant over a five-day period in December 2011. He was observed standing beside his vehicle with a crutch; carrying a box in one hand while using the crutch; pushing a small grocery cart and unloading it one bag at a time; kneeling to pump air into a tire; kneeling to pray; and picking a propane tank up off the ground for a few seconds. On a trip to Costco with his wife, his wife carried the purchases back to the vehicle. The appellant also made trips alone in his car to small bakeries and grocery stores.
[31] Daughter's Testimony
The appellant's daughter testified that she delivered boxes to restaurants to help out a relative. This was unpaid work. She tried to encourage her father to do this on a few occasions to "find out what his limitations were". A nurse with the WSIB had encouraged her to try and get her father out of the house. He tried it a few times but found it beyond him.
Trial Judgment
[32] Justice of the Peace's Findings
The justice of the peace found that s. 149(2) created a "mens rea offence", and that the prosecution had to prove beyond a reasonable doubt that the defendant not only failed to report a material change, but that the omission was intentional. Reading the reasons as a whole, it appears that she was not convinced that the activities observed during surveillance were inconsistent with an inability to return to any kind of work. She was not persuaded that the appellant understood that he had to report a material change in his condition, indicating, at para. 229, that:
[I]n order to understand this legal obligation, he would have been forced to navigate the WSIB's website in order to decipher what the WSIB intended as its policy on material change in circumstances. To do so, he would have had to undertake this search of the WSIB's website, while suffering from devastating injuries, and with limited command of the English language. There was no evidence before me that the defendant had a personal computer or any knowledge of how to use one.
[33] Acquittal
In the end, the justice of the peace concluded that the prosecution had not proven the mens rea of the offence and acquitted the appellant.
Appeal Judgment
[34] Appeal Judge's Reasoning
The appeal judge overturned the acquittal and ordered a new trial. It is difficult to discern what test he applied to the determination of the mens rea required for this offence. He seems to suggest that the appellant was guilty because he drove "consciously" or was wilfully blind to the existence of circumstances constituting a blameworthy state of mind. He concluded that "criminal responsibility is linked with the conduct element of the external circumstances of the offence. Criminal responsibility is conduct based".
Remedy
[35] Restoration of Acquittal
According to the factual findings made by the justice of the peace, the prosecution has not proven that the appellant had the mens rea required to sustain a conviction under s. 149(2), and the acquittal is restored.
Douglas Koomson
[36] The Injury
On May 17, 2007, the appellant fell from a workplace scaffolding and struck his head. He sustained severe head trauma that resulted in intracranial bleeding. He was diagnosed by a psychiatrist at the Toronto Rehabilitation Institute with a moderately severe, traumatic brain injury. He remained in hospital for three weeks following the accident. Medical professionals determined that he had sustained permanent cognitive impairment from the fall.
[37] Medical Reports
From the time of the appellant's accident onwards, numerous medical reports and assessments were sent to the WSIB. They reported that the appellant experienced ongoing issues including memory difficulties, decreased attention, headaches, lower back pain, decreased activity tolerance, right-side neck and shoulder pain, loss of interest, difficulty processing information, poor decision making, word-finding difficulties, poor organizational skills, poor pragmatic language functioning, poor reading comprehension and sleep difficulties.
[38] Driving Restrictions
After a neuropsychological assessment, the appellant was told he should not drive. The Ministry of Transportation was told of the appellant's medical condition and suspended his driver's licence for medical reasons shortly after the accident.
[39] WSIB Benefits
The WSIB accepted the appellant's diagnosis of a head/brain injury with persistent cognitive deficit. Based on its assessment of the appellant's medical reports, the WSIB determined that he was eligible for compensatory benefits, namely, full loss of earnings benefits, personal care allowance, independent living allowance and medication and healthcare benefits.
[40] Personal Care Allowance
The WSIB found that the appellant required constant supervision by a caregiver. It paid the appellant a personal care allowance for this purpose. The reason the WSIB paid these benefits to the appellant was because of its belief that he lacked the capacity to respond independently to an emergency situation. However, it believed the appellant required no assistance in other aspects of daily living such as bathing, exercising, administering medication, hygiene, dressing and undressing, and doing laundry.
[41] WSIB's Knowledge
The WSIB knew that the appellant performed well at the gym, could play board games and communicate with others. It knew that he was independent with grocery shopping and preparing a full meal with "no safety or cognitive issues identified".
[42] Surveillance Findings
The WSIB surveillance showed that the appellant drove by himself; he went into stores independently; he was able to lift, twist and bend; he lifted a heavy item; he performed weighted abdominal exercises; he conducted apparent business transactions; and he had a long discussion with someone while by himself.
[43] Driving and Support
The appellant's driving was arguably inconsistent with information previously provided to the board. The appellant had a rehabilitation support worker to teach him how to use public transit.
[44] Understanding of Benefits
The appellant had been advised that the personal care allowance provided to him was for "general supervision". It is not clear that the appellant understood the connection between the different benefits he was receiving and why they were being provided. It follows that it is equally unclear that the appellant knew he would receive benefits to which he was not entitled if he did not report that he was driving.
Trial Judgment
[45] Justice of the Peace's Conclusion
The justice of the peace convicted the appellant, concluding, at para. 137:
[I]f the defendant was not in an unconscious or dissociative state . . . then it can be inferred that the acts or omissions done by the defendant were willed or voluntary.
[46] Mens Rea Finding
In concluding that the Crown had satisfied the mens rea requirement, the justice of the peace held that, because the appellant "did not inform the WSIB about the material change at all", his failure to inform was therefore intentional and wilful.
Appeal Judgment
[47] Appeal Judge's Decision
The appeal judge dismissed the appeal on the ground that the justice of the peace had correctly identified the mens rea for the offence, and on the ground that his conclusions were reasonable.
Remedy
[48] Concession by Respondent
The respondent concedes that the justice of the peace and the appeal judge erred by concluding that if an individual was not in "an unconscious or impaired (dissociative) state" when he or she failed to report a material change in circumstances, it could be inferred that his or her acts or omissions were willed or voluntary.
[49] New Trial Required
The factual findings made by the justice of the peace are not sufficient to enable this court to conclude whether the requisite mens rea was proven. The conviction, and the appeal judgment upholding the conviction are set aside. A new trial is required.
David Curtis
[50] The Injury and Reports
On December 3, 2007, a snow plow struck a raised manhole cover, throwing the driver, Mr. Curtis, against the steering wheel. He suffered a back injury that resulted in chronic pain and reduced mobility. The WSIB granted Mr. Curtis benefits due to his injury. Between January 2008 and August 2011, Mr. Curtis filed various reports outlining his physical abilities and impairments as a result of the injury:
- worker's progress reports indicated that his travel ability ranged from no ability to travel to ability to travel for 45 minutes;
- functional abilities forms indicated that Mr. Curtis could sit for up to 30 minutes and lift up to 5 kilograms;
- a clinical assessment indicated that Mr. Curtis should avoid "moderate to heavy lifting" as well as industrialized motor vehicles; and
- physiotherapist reports indicated that Mr. Curtis could not stand or sit for more than one hour and that he was unable to lift, bend or twist.
[51] Surveillance Findings
The board investigated Mr. Curtis and found that he was engaged in the following activities between February 2008 and October 2010:
- driving for 25 to 30 minutes;
- picking up and laying interlocking bricks;
- laying patio stones; and
- climbing/shingling his roof.
Trial Judgment
[52] Justice of the Peace's Findings
The justice of the peace found that there was a "material change" and that Mr. Curtis failed to report it to the WSIB. Mr. Curtis was convicted on this basis. The justice of the peace found that "the activities alleged to have been carried out by Mr. Curtis far exceed the abilities or restrictions recommended for Mr. Curtis and reported by Mr. Curtis" and that he must have had some improvement in his condition in order to perform those activities. On the other hand, the justice of the peace accepted that the appellant suffered from chronic pain, reduced mobility and agility and diminished quality of life and that his level of disability would not allow him to return to any form of employment.
Appeal Judgment
[53] Appeal Judge's Decision
The appeal judge concluded that the reasons provided by the justice of the peace were sustainable on the evidence and accordingly, the appeal was dismissed.
Remedy
[54] New Trial Required
Neither the justice of the peace nor the appeal judge identified the mens rea required for the offence. In the absence of any findings on that issue, a new trial is required.
Conclusion
[55] Disposition
Accordingly, I would allow the appeal by Mr. Kathirkamapillai and restore the acquittal and allow the appeals by Mr. Koomson and Mr. Curtis and remit both matters for a new trial, if demanded by the prosecution.
Appeals allowed.
End of Document
