Court File and Parties

Court File: Toronto Region Information No.105663, No.105664, No.105665

Date: August 4th, 2011

Ontario Court of Justice

Between:

Her Majesty the Queen in Right of Ontario Ministry of the Attorney General Financial Services Commission of Ontario

— And —

Ontario Disability Management, Gregori Miakouchkine, Aksana Miakouchkina aka Roxanne Mitch

Before: Justice of the Peace M. H. Conacher

Counsel:

• S. Scharbach for the prosecution
• R. Watt for the defendants

Decisions

[1] Aksana Miakouchkina, aka Roxanne Mitch, is charged with knowingly making false or misleading statements or representations to an insurer in order to obtain payment for goods or services provided to an insurer, contrary to clause 447 (2)(A.3) of the Insurance Act of Ontario.

[2] The prosecution has not proven this offence beyond a reasonable doubt. Accordingly, Ms Miakouchkina is not guilty of the offence and this charge is dismissed.

[3] Ontario Disability Management Inc. is also charged with knowingly making false or misleading statements or representations to an insurer in order to obtain payment for goods or services provided to an insurer, contrary to clause 447 (2)(A.3) of the Insurance Act of Ontario. This is a form of vicarious liability, predicated as it is on the actions of its officers, directors or employees. However, as the actions that were the subject of the Prosecution's case were those of Aksana Miakouchkina, and for the reasons leading to the conclusion that it was not proven beyond a reasonable doubt that Ms Miakouchkina committed the offence as alleged, the charge against ODM is also dismissed.

[4] Gregori Miakouchkine is charged with having committed the offence of while being an Officer or Director of Ontario Disability Management Inc. having failed to take reasonable care to prevent Ontario Disability Management Inc. from committing the offence of knowingly making false or misleading statement (sic) or representation (sic) to an insurer in order to obtain payment for goods or services provided to an insured, contrary to clause 447(4) (b) of the Insurance Act of Ontario.

[5] As the Court found that the offences alleged to have been committed by Aksana Miakouchkina and by ODM have not been proven beyond a reasonable doubt, it follows that Gregori Miakouchkine has not failed, on the basis of these proceedings, to have taken care, reasonable or otherwise, to prevent the offences from being committed, as the offences have not been proven to have been committed.

[6] Mr. Miakouchkine had also been charged as a Director of Ontario Disability Management Inc. of causing, authorizing, permitting or participating in the activity that led to the conviction of the defendant corporation. However, at the close of its case, the prosecution brought a motion that this count against Mr. Miakouchkine be dismissed and the Court made that order at that time, given that no evidence had been led that would support such a finding.

Reasons

Essential Facts

[7] Many of the essential facts in this matter are not in dispute.

[8] Ontario Disability Management Inc. (ODM) is a business incorporated in Ontario with two locations carrying on the activity of providing assistive devices and also arranging for assessments to determine eligibility for benefits in accordance with the Statutory Accident Benefits Schedule pursuant to the Insurance Act of Ontario.

[9] Grigori Miakouchkine is the President of the company but had very limited involvement in the running of the company. He was at the relevant time the sole Director of the company. His wife, Aksana Miakouchkina was, by his evidence and that of Ms Miakouchkina herself and corroborated by the testimony of Sylvia Lang and Dr. Marilyn Miller, the General Manager and the day to day operations manager of the activities of the company. As Mr. Miakouchkine testified, his wife decided who to hire. She worked with doctors, paralegals, lawyers. "She decided everything." By his testimony and that of his wife, he was not involve at all. In addition to serving as President of the company, his role was limited essentially to that of signing officer. He would come in two to three times per month to sign cheques, pay the rent, and check on supplies. By her own testimony, Ms Miakouchkine oversaw the company operations, brought in business, directed staff and worked with the health care professionals who provided assessment services at the behest of ODM.

[10] Such health care professionals included Dr. Marilyn Miller, Ph.D., C.Psych., a registered psychologist who testified on behalf of the prosecution. According to Aksana Miakouchkina, ODM used the services of from five to 10 health care professionals at any one time. However, it was the actions of Ms Miakouchkina in relation to Dr. Miller's assessment reports that are the basis for the prosecution's allegations against all three defendants.

The Statutory Accident Benefits Scheme

[11] The system under the Insurance Act for seeking approvals from automobile insurance companies for the performance of assessments and subsequently for the provision of treatment for injuries under the Statutory Accident Benefits Schedule was, similarly, not in dispute. That procedure for initiating a plan of treatment under the SAB Schedule was set out in the testimony of Mr. Michael Lake, an Investigator with the Insurance Bureau of Canada since 2011 and prior to that, from 1989 to 2011, a Claims Representative with State Farm Insurance Company. Up until 1998 Mr. Lake solely handled automobile accident benefits claims and subsequently investigated accident benefits claims on behalf of the company.

[12] Mr. Lake explained the purpose and significance of the various forms which the prosecution sought to tender as exhibits. Exhibit #2 is the form entitled "Application for Approval of an Assessment or Examination", commonly referred to as an OCF-22. Exhibit #3 is the form entitled "Treatment Plan", commonly referred to as an OCF-18. Exhibit #4 is the form entitled "Auto Insurance Standard Invoice", commonly referred to as an OCF-21.

[13] The role of assessment centres, such as ODM, and rehab clinics is to help assess the nature of injuries, to complete assessment and treatment forms and to submit claims. The assessment centres and rehab clinics are businesses. They require no special registration in order to carry on this activity. They engage the services of health care practitioners.

[14] An individual injured in an automobile accident would engage the services of an assessment centre such as ODM. The assessment centre would prepare an OCF-22 and submit it for approval to the relevant insurance company. An approval of the OCF-22 meant that the insurer would subsequently pay for the assessment performed by the service provider identified on the application.

[15] Following the assessment contemplated in the OCF-22, the next step would be providing the insurer with a proposal for a plan of treatment. That would be set out in the OCF-18 prepared, again, by the assessment centre or rehab clinic and submitted for approval to the insurer. If approved, the contemplated therapy would be arranged for by the assessment centre and costs for that treatment would be submitted to the insurer on an OCF-21, prepared by the assessment centre.

[16] Key to the Prosecution's allegations are Part 3 of an OCF-22 and Part 5 of an OCF-18. Part 3 of the OCF-22 calls for a declaration by regulated health professional or social worker. Part 5 of an OCF-18 similarly calls for a declaration by a regulated health practitioner.

[17] Mr. Lake testified that an approval by an insurer of either an OCF-22 or OCF-18 would be an assurance that payment would be forthcoming when the invoice, the OCF-21, was submitted for payment. He also testified that the insurance company would be relying on the presence of the declaration of a registered health professional or social worker as a condition precedent to its granting such approval.

[18] It is particularly the Prosecution's questioning of the bona fides of the signed declaration that appears in Part 5 of numerous OCF-18's submitted by ODM to various insurers that is the cornerstone of its case against the three defendants.

Aksana Miakouchkina, aka Roxanne Mitch

[19] I will deal firstly with the allegations against Ms Miakouchkina as the allegations against her husband, Grigori, and against the corporation flow from her actions and from her position within the company. It was clear, based on the collective testimony of Grigori Miakouchkine, Sylvia Lang and Ms Miakouchkina herself that Ms Miakouchkina was the operating mind regarding ODM's business as it related to facilitating assessments and treatments. She hired and directed staff, recruited health and other professionals. Simply put, she and no one else was in charge. Grigori Miakouchkine's role in the operations of this aspect of the business was minimal to non-existent. He did not have a decision-making or directing role, notwithstanding that he was the sole Director of the Corporation.

[20] The prosecution tendered as part of exhibit #1 (tabs 1 – 21), photocopies of twenty-one (21) Treatment Plans in the form of OCF-18s. It was acknowledged that these were copies of Treatment Plans submitted by ODM to several automobile insurance policy providers on behalf of twenty separate applicants. Part 5 of each of these OCF-18s contains the information for Dr. Marilyn Miller, including her College Registration Number, and reflects what purports to be the signature of Marilyn S. Miller. Several of the forms are signed simply Marilyn Miller. The dates given in Part 5 of the forms ranges from April 3, 2007 to October 15, 2008.

[21] The essence of the Prosecution's case against Ms Miakouchkina and ODM Inc. is that Dr. Miller a) had not assessed any of these individuals, b) would not sign an OCF-18 in a case in which she had not done an assessment and c) had not authorized anyone else to affix her signature to a form for a client/patient for which she had not performed an assessment.

The Charging Documents: The Informations

[22] I wish to deal firstly with an issue which, although not raised by the Defence, presents to the Court as a problem for the Prosecution.

[23] Section 25 of the Provincial Offences Act of Ontario provides:

25. (1) Each offence charged in an information shall be set out in a separate count.

Allegation of offence

(2) Each count in an information shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the defendant committed an offence therein specified.

[24] The Informations with respect to Ms Miakouchkina and the corporation set out a single count by way of allegation. The evidence of the Prosecution, however, relates to multiple transactions, each of which is alleged to represent the knowingly making of a false or misleading statement or representation to an insurer in order to obtain payment for services provided to an insured.

[25] However, in at least several of the instances submitted by the Prosecution, it is acknowledged through the Prosecution witness Dr. Miller that she did, in fact, meet several of the clients whose OCF-18s are included in Exhibit #1, those being Elena Maximovitch, Yevgenya Rojkova and Ilia Feldman. In the cases of Ms Maximovitch and Mr. Feldman, Dr. Miller testified that she, "probably did sign the form", meaning the OCF-18. These transactions are, presumptively, elements in the single count against Ms Miakouchkina and against ODM Inc.

[26] The particular clause under the Insurance Act does not, in this Court's interpretation, create an offence for a continuing course of conduct. Clause 447(2)(a.2) creates the offence of knowingly making "a" false or misleading statement or representation. The penalties provided for in ss.(3) could be incurred for a conviction for a single transaction. The Informations against Ms Miakouchkina and against ODM bundle a number of transactions together into a single count. As noted above, the Prosecution's theory with respect to at least three of the transactions is not supported by the evidence that it presented.

[27] Again, the Defendant did not raise the issue of the failure to comply with ss. 25(2) of the Provincial Offences Act as being an issue and therefore, presumptively, did not consider it to be prejudicial. In fact, to the contrary, rather than facing the jeopardy of potential conviction on 21 counts, the defendants faced but one. However, in the view of the Court, this bundling of transactions into one count and the fact that these three transactions were clearly not supported by the Prosecution's evidence contributes to a credibility issue with respect to the remainder of the transactions, based as each of these transactions are on information supplied to the Prosecution by Dr. Miller. Further concerns regarding the remaining transactions are dealt with below.

Credibility

[28] The offence against Ms Miakouchkina has, in this Court's analysis, not been proven beyond a reasonable doubt in part because the Prosecution has not proven beyond a reasonable doubt that the remaining transactions occurred in the manner submitted by the Prosecution. The shortcomings in the Prosecution's case in this respect are due, in part, to credibility concerns regarding the whole of Dr. Miller's evidence. To be clear, this does not relate to any concerns of the Court with respect to Dr. Miller's truthfulness but rather primarily to her recollection and to her record-keeping.

R. v. W.D.

[29] The Court's approach to resolving credibility conflicts, in this case specifically regarding the viva voce evidence tendered through Dr. Miller and through Ms Miakouchkina, is informed by the case of R. v. W.(D.), [1991] 1 S.C.R. 742.

[30] Of particular assistance, and relevance, is the commentary on the proper application of the test in the decision of Panet, J. of the Ontario Superior Court of Justice in R. v. Masuka, [2004] O.J. No. 753, para. 7:

Where, as in the present case, the central issue is one of credibility as between the evidence of the Crown and the evidence of the accused, the court is required to apply the test as established in R. v. W.(D.), [1991] 1 S.C.R. 742 as follows:

1. If the evidence of the accused is believed, the accused must be acquitted.

2. If the evidence of the accused is not believed but the court is left in reasonable doubt by it, the accused must be acquitted.

3. Even if not left in doubt by the evidence of the accused, the court must still ask whether it is convinced beyond a reasonable doubt of the guilt of the accused on the basis of the evidence which the court accepts.

¶ 8 Reference to the test in W.(D.) by name is not necessary, however the application of the test in weighing and assessing the evidence as a whole is mandatory (see R. v. S.P., [2001] O.J. No. 4129 (Ontario Court of Appeal)).

¶ 9 In the present case, the trial judge reviewed the evidence of the accused and it appears that he rejected that evidence. He then went on to conclude that he was satisfied beyond a reasonable doubt that the accused was trying not to give a sample to the police officer by not providing the samples on four occasions and by his refusal to give a fifth sample.

¶ 10 In doing so, the trial judge failed to address the second question in the W.(D.) test, which he was required to do, as to whether, even if he did not believe the evidence of the accused, he was left in reasonable doubt by that evidence. In doing so, the trial judge erred in law.

Dr. Miller's Evidence

[31] Dr. Miller testified that she only signed OCF-18s that had been filled out in full; that she never authorized anyone to put her signature on any OCF-18 either for someone she had seen or not seen; that she would never knowingly sign an OCF-18 for someone she had not seen, that she "would not be allowed to"; nor did she sign any OCF-18 in blank.

[32] A list was presented under Tab 1 of the Defendants' Document Brief which was acknowledged to be a list of "ODM Clients Seen By Dr. Marilyn Miller". This list had been disclosed to the Defendants by the Prosecution. The list, however, was not properly qualified by either the Prosecution or the Defence and there was only a cursory description of how the list was prepared. The inference that was clearly intended to be drawn was that the list represented an exhaustive list of names of clients seen by Dr. Miller on behalf of ODM and, according to Dr. Miller, for whom she had prepared a report. The information was drawn up by her based on her computer files. By her later testimony, she described her records as consisting of her hard copy files which would contain a copy of her assessment reports as well as her field notes. There was no description provided as to where these records were kept nor how they were maintained or who had access to them. None of her records in relation to the names on the list were presented to the Court except for copies of pages taken from her appointments diary.

[33] The reliability of Dr. Miller's testimony, in a very important respect, relates to the reliability of the list. During examination-in-chief, when presented with the individual copies of the OCF-18s contained in Exhibit #1, tabs 1 – 21 and asked whether she had seen the individual named on the form as 'Applicant', Dr. Miller was obliged to refer to the list prior to responding. Her response would be that, if the name was not on the list then she hadn't seen that person. By reference to her testimony described in paragraph 31 above, her position was that if the name was not on the list then she had not signed the OCF-18 and had not authorized anyone else to affix her signature to any OCF-18 in relation to that individual. Conversely, as with the three individuals listed in paragraph 25 above, if they were on her list then she testified that she had seen them. With Ms Rojkova she went a little further in testifying that she vaguely remembered meeting her.

[34] Dr. Miller also acknowledged that there was one individual whose name was not on her list whom she had, in fact, met with.

[35] The use of her diary to verify whether or not she had, in fact, met with the individuals on her ODM Client List is of limited value. The diary entries are ambiguous. Not all dates marked for 'ODM' give specific names. Her testimony is that for those dates she just kept the time available for ODM, however, she could not state that she had not, in fact, met with anyone referred to her by ODM during those blocks of time. She testified that during the early stages of her work for ODM, "she was not always efficient"; that she did not keep careful track, at least not as careful as she should have. She testified that some clients referred to her by ODM did not show up for their appointments. The Court was not advised if any of the clients on the disputed OCF-18s fell into this category.

[36] Having asserted that she would not knowingly sign any OCF-18 when she had not seen the client, she nevertheless acknowledged co-signing the psychological assessment reports that were prepared by Dr. Owen Giddens, given that she, as a Registered Psychologist, had agreed to supervise him as he was not Registered. In describing her relationship with Dr. Giddens in cross-examination, Dr. Miller allowed as how it was possible, contrary to her testimony during examination-in-chief, that she had signed OCF-18s for individuals that she herself had not seen.

[37] All of the above casts doubt on the reliability of Dr. Miller's list, her assertion that she never signed an OCF-18 for someone she had not seen, and the veracity of the remaining 17 disputed OCF-18s presented in a bundle by the Prosecution.

Aksana Miakouchkina's Evidence

[38] In direct juxtaposition to Dr. Miller's testimony, Ms Miakouchkina testified that Dr. Miller saw "many more" clients than those on her ODM Client list and that Dr. Giddens had assessed many more clients under Dr. Miller's supervision than Dr. Miller testified to.

[39] While there are serious inconsistencies in Dr. Miller's evidence, as noted above, the Court also had concerns about the veracity of Ms Miakouchkina's evidence in a number of areas. In several instances, she presented to the Court as being very guarded in her responses, particularly in cross-examination. While it is common for defendants who are subject to cross-examination to be cautious and careful in responding to questions, Ms Miakouchkina at certain points left the Court with the impression that she was being less than forthcoming and not directly responsive to the questions as they were put to her.

[40] There was also information asked of Ms Miakouchkina, information under her control, that one would have expected she would have ensured she had available to her, given her decision to testify on her own behalf; information such as the number of clients seen by Dr. Miller on behalf of ODM; the number of clients assessed by Dr. Giddens for whom Dr. Miller signed the OCF-18; the date when Dr. Giddens first began doing work for ODM.

[41] In response to certain of the Prosecutor's questions that called for a clear "yes" or "no" response, Ms Miakouchkina chose to respond elliptically or rhetorically. The following exchange is illustrative:

Prosecutor: Did you ever ask Dr. Miller whether she approved of you using her signature in respect of patients that she never assessed?

Ms Miakouchkina: I would bring her the forms, she would sign it. Why would I ask her that?

The exchange continued in that vein without Ms Miakouchkina ever directly answering the question.

[42] She testified that a number of the individuals for whom a copy of the OCF-18 was submitted as part of Exhibit #1, individuals who were not on Dr. Miller's list at tab 1 of Exhibit #6, "could have" been assessed by Dr. Owen Giddens. Presumptively, given that it was acknowledged that ODM had submitted the OCF-18s to insurance companies, copies of these documents would be in the possession of and under the control of ODM. Ms Miakouchkina would have been able to review these materials in order to give full and frank testimony on an issue that goes directly to the heart of the allegations. In the view of the Court, the witness should have been able to provide a more assertive response to the question.

[43] Ms Miakouchkina was unable to be specific about when Dr. Giddens began doing work on behalf of ODM nor how it was that he came to be doing work for ODM nor when he first did reports for ODM that were subsequently signed-off on by Dr. Miller. She testified that she couldn't remember dates exactly. She had not reviewed ODM's records nor did she have notes with her to refresh her memory with respect to this and a number of other issues where the records of ODM could, presumably, be of assistance. She subsequently explained the lack of reference to records on the basis of having had a flood.

[44] Perhaps for those reasons, no evidence was presented to the Court and Ms Miakouchkina did not give testimony as to when and where the "many more" clients referred to in paragraph 36, above, were seen by Dr. Miller.

[45] Sylvia Lang was clear in her testimony that when preparing OCF-18s for submission she was instructed by Ms Miakouchkina that she was to use what were, in effect, pre-signed Part 5 forms from ODMs own files to slip into the OCF-18. This stands in contradiction to Ms Miakouchkina's testimony at one point that Dr. Miller signed all the OCF-18s that were submitted in her name. Further, notwithstanding that Ms Miakouchkina testified that ODM engaged other health professionals, Ms. Lang testified that in the 6 months that she worked for ODM, Dr. Miller's was the only name she recalls having seen in her time with ODM.

[46] However, Dr. Miller does acknowledge signing "a few" OCF-18s and described a process similar to that described by Ms Miakouchkina by which Dr. Miller would be presented with OCF-18s; that sometimes Ms Miakouchkina would drop by and have them sign the forms and other times they would be sent. Dr. Miller did not keep copies of these for her records. The OCF-18s were prepared by ODM, including soliciting and incorporating input from other service providers. The Court concluded that it was the administrative practice for ODM to then submit the OCF-18 along with any supporting reports directly to the insurance company and that Dr. Miller knew that that was the process and presumably condoned it. At the very least, she did not complain about it or express concern about it until the late Spring/early Summer of 2008.

Evaluating Ms Miakouchkina's and Dr. Miller's Testimonies

[47] While it is for the parties themselves to determine what evidence and witnesses to present, it appears to the Court that there would have been information readily available to the parties that could have been presented to the Court that would have assisted in resolving the credibility issues.

[48] Presumably Dr. Giddens could have shed some light on a number of these issues, especially his disputed role in doing assessments that were subsequently signed-off on by Dr. Miller, but he was not called to testify by either party. The Court was not informed as to the reasons, if any, that Dr. Giddens was not called.

[49] There was no evidence tendered from any of the insurance companies to whom the OCF-18s were submitted. It was not clear if any of these companies were, in fact, complainants in this proceeding. Mr. Michael Lake, an Investigator since 2009 with the Insurance Bureau of Canada, the national association representing private insurers, was called by the Prosecution to give testimony with respect to the statutory accident benefits scheme under the Insurance Act. Mr. Lake was helpful as someone knowledgeable about the scheme and the purpose of the various forms. However, he was not qualified as an expert witness and his testimony, when it ventured into opinion as to how individual insurance companies would view the information contained in the various forms has to be treated with caution. However, as noted, Dr. Miller was content to leave such administration to Ms Miakouchkina.

[50] It appears that it was only when contacted by a professional colleague who, in effect, sounded an alarm regarding moral and ethical concerns with the practice of "forcing" an OFC-18 and with signing Part 5 without having seen the patient that Dr. Miller began to be focussed and rigorous about the process. This was more than a year and a half into her relationship with ODM. Still, having been contacted by her fellow professional in June or July, 2008 it appears to not have been until December, 2008 that she communicated her concerns very clearly to Ms Miakouchkina. These concerns are reflected in an email she sent to 'Roxanne Mitch' on December 10, 2008. Unlike other emails sent by Dr. Miller that are business-like and dispassionate, the December 10, 2008 email strikes a tone of alarm that the Tatyana Kennberg case had, "become so complex and also compromised my professional standards and risk of initiating a college complaint …". It was at this point that Dr. Miller's relationship with ODM effectively came to an end.

[51] The issue of clarity around these two issues, those being whether or not Dr. Miller had, de facto, led Ms Miakouchkina to conclude that she had Dr. Miller's consent to either affix her signature to Part 5 of OCF-18s or to submit OCF-18s for people Dr. Miller had not seen, was handicapped by a lack of any clearly defined, i.e. written, policies, practices and procedures. The relationship between Dr. Miller and ODM appears to have been characterized by a lack of communication between the two parties on these issues. Dr. Miller, as the regulated professional whose signature, apparently, was key to having the OCF-18s approved and whose professional standing and reputation was on the line, was content to entrust the preparation and processing of these forms entirely to a non-health professional, someone who may well have not been schooled in nor bound by a professional code of ethics or conduct.

The Meaning of Part 5 of the OCF-18

[52] It is, in the view of the Court, important in the context of these proceedings to examine the meaning and import of the "confirmation" that Part 5 of the OCF-18 provides for. The pre-printed affirmation in Part 5 states:

I confirm that, to the best of my knowledge, the information in this Treatment Plan is accurate, the Treatment Plan has been reviewed with the applicant by the regulated health professional or social worker in Part 6, and the goods and services contemplated are reasonable and necessary for the treatment and rehabilitation of the applicant for the injuries identified in Part 7.

[53] It does not call on the person signing to certify that they, personally, have seen the patient/client but rather that that person has been seen, either by themselves or by the professional indicated in Part 6. Given that, it would not be unreasonable, in the context of the form generally and this Part in particular, for the person signing to be relying on the opinion of others in asserting that the proposed treatment is reasonable and necessary. The signature in Part 5 connotes not "certification" but rather "confirmation". The health practitioner who signs Part 5 is being called on to confirm "to the best of (their) knowledge" which is a somewhat more conditional, equivocal statement than a "certification".

[54] In cross-examining Ms Miakouchkina regarding the OCF-18 form and specifically Part 5, the Prosecution put to her the question whether she would agree that in signing that Part the health practitioner was "certifying" that the treatment plan was necessary for the applicant to be treated for the injuries that were listed in the form itself. Ms Miakouchkina agreed. He then asked if she agreed that the health professional was putting their professional reputation on the line. Again, she agreed.

[55] Further on this lack of clarity, none of the individuals named in the disputed OCF-18s were called to testify on the issue of whether or not they had, in fact, been seen by either Dr. Miller or Dr. Giddens acting under Dr. Miller's supervision.

[56] And finally on the issue of whether Dr. Miller could reasonably have been seen by Ms Miakouchkina to granting her consent to the use of her signature in these ways. At the bottom of Part 13 of the OCF-18 is a text box entitled 'Note'. The Note states, in part:

… The Health Practitioner will contact each of the health professionals listed in Part11 and provide details of the services and other charges that have been approved and are payable under this Treatment Plan.

[57] A Health Practitioner reviewing the form prior to signing would be aware that they could expect to be contacted by the insurer subsequently following through on the approval of the treatment plan. In each of the copies of the OCF-18s tendered in Exhibit 1, Dr. Miller is identified as the Health Practitioner. If the note above is accurate, it would be Dr. Miller who would be contacting the health professionals identified in Part 11 to advise them of the insurer's response to the proposed treatment plan.

[58] So, too, anyone submitting the form would be aware that the line of feedback from the insurer could, in fact should, lead to the Health Practitioner such as Dr. Miller. It would not be logical to use Dr. Miller's signature in a surreptitious way knowing that there was every likelihood that Dr. Miller would be made aware of the use of her signature in this way.

[59] Therefore, while I have some concerns as noted above about aspects of Ms Miakouchkina's testimony, I find that on the whole of the evidence her account of the nature of her interaction with Dr. Miller, and with other health practitioners, there is reasonable doubt regarding the Prosecutor's contention that ODM did not have Dr. Miller's approval, express or implicit, with respect to the 17 remaining disputed OCF-18s.

Mens Rea

[60] Ms Miakouchkina and ODM are charged with "knowingly making false or misleading statements or representations .." This begs the issue of whether the Prosecution is required to prove a requisite mental element in order to make out the offences, particularly on the part of Ms Miakouchkina.

[61] In this respect, it is necessary to refer to the instructive analysis of the Supreme Court of Canada in R. v. Sault Ste. Marie, [1978] S.C.J. No. 59:

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:

1. 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.

2. 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.

3. 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. [emphasis added] 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.

[62] Presumptively, public welfare or regulatory offences would be classified as strict liability offences, in which the Prosecution would only need to prove the actus reus in order to sustain a finding of guilt. It is also relevant, for the purposes of this Court's deliberations, to reference Justice Dickson's statement with respect to the prime distinction between mens rea and strict liability concepts:

The distinction between the true criminal offence and the public welfare offence is one of prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law. [emphasis added]

[63] No authorities were presented to the Court as to whether this particular provision of the Insurance Act is to be approached as a mens rea versus a strict liability offence. I note that my colleague, His Worship R. Quon, in Ontario (Workplace Safety and Insurance Board) v. Koomson, [2011] O.J. No. 5944, treats the offence of " willfully fail to inform the WSIB of a material change in circumstances in connection to his entitlement to benefits within 10 days of such change occurring" as a mens rea offence. In the case of R. v. Edwards, [2007] O.J. No. 4729, Fairgrieve, J. sitting as a Provincial Offences Appeal Court judge, treated the Compulsory Automobile Insurance Act offence of knowingly having a false automobile insurance card as a mens rea offence.

[64] The Court notes that clauses (a), (b) and (c) of ss. 447 (2) do not employ the word "knowingly". These clauses create what are presumed to be strict liability offences. Clauses (a.1), (a.2) and (a.3) are clearly distinguished by the words "knowingly" and "willfully". Further, the penalties for individuals for offences under the Insurance Act are in the very high end of the range for regulatory offences; up to $100,000 for a first conviction and up to $200,000 on each subsequent conviction. As well, they may be ordered to make restitution and there is no maximum amount specified by way of restitution.

[65] In the context of this section and the statutory benefits scheme, the significant potential penalties, the Court concludes that the distinct and distinguishing language used in clause (a.3) creates the requirement that the mental element of the conduct be proven in order to establish the offence. The standard of proof is beyond a reasonable doubt.

Analysis of the Prosecution's Case

[66] As the Prosecutor himself submitted, the OCF-18s were intended to "facilitate" payment for services. Although they are part of a statutory benefits scheme, they were not, in themselves, equivalent to the invoicing for services. Insurance companies, of course, could and did refuse to approve the OCF-18s, particularly, according to Dr. Miller, if they were submitted without an assessment report, which ODM did from time to time, according to Ms Miakouchkina, on the instructions of lawyers or paralegals. While there was no direct evidence presented on the point, it is reasonable to infer that insurance companies would have their own mechanisms and processes in place to do a certain amount of due diligence, spot-checking as it were, of the large volume of OCF-18s they would receive. The Court did hear in evidence that the companies would use independent examiners, presumably in order to obtain second opinions on the recommended treatment plans themselves. In fact, it was the involvement of one such independent examiner and their communication to Dr. Miller that set in motion the termination of her relationship with ODM.

[67] Ms Miakouchkina testified that ODM would be "instructed" on occasion by lawyers or paralegals to submit an OCF-18 notwithstanding that the OCF-22 had been refused or notwithstanding that there was no assessment report to accompany the OCF-18. Ms Miakouchkina's testimony was that she was given this instruction from those legal representatives with the agreement that if the insurance company did not approve the treatment plan then they, the legal representatives, would "protect" ODM's account. In short, ODM would be paid regardless, either by the insurance company or by the client via the legal representative. This testimony stands uncontradicted and uncontroverted and is corroborated to a degree by Dr. Miller's testimony.

[68] Dr. Miller testified that in June or July of 2008 issues arose regarding the client Tatyana Kennberg following a report from an Independent Examiner appointed by the insurance company. Dr. Miller stated that Ms Miakouchkina "seemed surprised" when Dr. Miller said to her that she, Dr. Miller, could not sign an OCF-18 without having seen the patient. Dr. Miller acknowledges that she had signed an OCF-22 for Ms Kennberg. However, that Request for an Assessment, apparently, was not approved. Dr. Miller testified that Ms Miakouchkina had told her that, notwithstanding that decision, a lawyer or paralegal had told her to submit an OCF-18.

[69] The Court heard testimony that ODM utilized the services of a number of medical professionals for doing treatment plans and, presumably, for providing treatment. The Prosecution did not present any evidence of any similar issues regarding ODM and these other medical professionals. On the other hand, the testimony of Ms Miakouchkina indicated that ODM has a similar process in place as it did with Dr. Miller and that the other medical professionals gave their consent to their signatures being affixed to the OCF-18s. The inference of Ms Miakouchkina's uncontradicted and uncontroverted testimony on this point is that she understood this to be an acceptable practice for administrative convenience purposes.

[70] What was there to lead Ms Miakouchkina, or anyone for that matter, to know that the process that she was following was not merely immoral and unethical as asserted by the independent examiner to Dr. Miller, but illegal, if in fact it was? The only evidence before Court is the caution in Part 5 of the OCF-18 which, as noted above, is somewhat ambiguous.

[71] Perhaps most significantly, Ms Miakouchkina had been following this practice for over a year and a half with Dr. Miller's reports up to June or July of 2008. Dr. Miller was aware that OCF-18s were required to be filed along with her reports. She appears to have been content to leave that aspect of the business and process to Ms Miakouchkina. It was only when she became alarmed at the content of the Independent Examiner's report in the Kennberg case that she checked her files and discovered that she did not have copies of the OCF-18s in most of the cases that she had done on behalf of ODM.

[72] All of the disputed OCF-18s tendered as exhibits disclose Dr. Miller's contact information. It would not be unreasonable for the insurance company contact person to communicate with Dr. Miller to verify the information in the OCF-18, including any recommendations for treatment. In fact the Independent Examiner in the Kinnberg case did just that; interestingly, not to challenge the treatment plan recommended in the disputed OCF-18 but rather to state his opinion that more treatment was necessary than was called for in the OCF-18.

[73] Anyone submitting the OCF-18s would be alive to the possibility that the Health Practitioner could be contacted directly. In fact, the Note in Part 13 of the OCF-18 expressly indicates that the Health Practitioner will be informed so that they can, in turn, inform the other health professionals. Can someone be found to be knowingly attempting to deceive or to mislead if there is this type of disclosure?

[74] Given all of that, is it reasonable to conclude that Ms Miakouchkina held an honest belief that the process of attaching Dr. Miller's signature to Part 5 of OCF-18s was not improper, notwithstanding that Dr. Miller personally may not have met with the client/patient? Put differently, has the Prosecution proven beyond a reasonable doubt, because this burden does fall to the Prosecutor, that Ms Miakouchkina knew that Dr. Miller did not approve of having her signature affixed to an OCF-18, especially in cases in which Dr. Miller herself had not seen the client and that she did this in order to obtain payment for services to an insured? I have to conclude, given the evidence that was presented in this case, that it has not.

Further Evidentiary Difficulties

[75] It is not clear to the Court how the various insurance companies reacted to the OCF-18s. The Prosecutor asked the Defendant in cross-examination if the insurance companies approved the OCF-18s that the Prosecution tendered as exhibits. She responded that she did not know; again, she didn't check her records before testifying. If the Prosecution was of the view that this information was relevant to the Prosecution's case, could insurance company representatives not have been summonsed? The insurance companies and contacts are listed on each of the OCF-18s. They might have been able to inform the Court whether they in any instance thought it necessary to contact the listed Health Practitioner in determining whether or not to approve the OCF-18. Further, the Court is left not knowing whether or not these OCF-18s were approved or denied by the companies or whether the companies themselves were complaining about the disputed forms.

[76] In a similar vein, no evidence of invoices or payments for the people on the OCF-18s was presented. Presumably the client/patients, if called to testify, could have given clarity around the necessity of the treatment as recommended. As Counsel for the Defendants summarized, there is no evidence that the treatment plans as set out in the OCF-18s were not appropriate nor that any approved treatment was not provided.

Conclusion

[77] For the reasons outlined above, I conclude firstly, that there is uncertainty in the Prosecution's evidence that Dr. Miller did not meet with the 20 individuals identified on the OCF-18s tendered as exhibits. We know for a fact that she did meet with at least three of them. While I do not accept Ms Miakouchkina's testimony in its totality, neither do I have confidence, for the reasons outlined, in the list upon which Dr. Miller relied so heavily to support her memory. Dr. Miller's testimony might have been bolstered by the submission of corroborating documentation or by the testimony of those named as Applicants on the disputed OCF-18s but that is speculation. On the whole of the evidence that was before the Court in this regard, and consistent with the second branch of the W.D. analysis, I am left in doubt regarding the Prosecutor's assertions.

[78] Secondly, given the nature of the interaction between Dr. Miller, Ms Miakouchkina/ODM and Owen Giddens and between ODM and other health practitioners, the Prosecution has not proven that it was not reasonable for Ms Miakouchkina to believe that she had the implicit, if not the explicit, consent of Dr. Miller to use Dr. Miller's name on the OCF-18s in the way that she did.

[79] Finally, with respect to the state of Ms Miakouchkina's knowledge, I find that Dr. Miller did not expressly communicate to Ms Miakouchkina until December, 2008 that she did not approve of having OCF-18s submitted without her having seen the patient. While Ms Miakouchkina presented as somewhat disingenuous on the issue of whether she herself had ever confirmed with Dr. Miller whether it was permissible to do so, to paraphrase Dickson, J.'s comment in Sault Ste. Marie, within the context of a quasi-criminal prosecution, a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he or she should have known, is innocent in the eyes of the law.

[80] As laid out by Ms Miakouchkina in her testimony, the submission of OCF-18s in situations where the client had not been seen by the Health Practitioner, or where there had been no real assessment done per se, or where an OCF-22 had previously been denied, was an open practice and done pursuant to the request of lawyers or paralegals representing the Applicants. The Prosecution did not lead evidence to controvert Ms Miakouchkina's testimony that this was done in a transparent and open manner. The Court concludes that the Prosecution has not proven beyond a reasonable doubt that Ms Miakouchkina had the knowledge, or ought to have known, that doing this amounted to a false or misleading statement or representation.

[81] Accordingly, and to repeat, with respect to Ms Miakouchkina, the offence has not been proven beyond a reasonable doubt and there will be a finding of not guilty. The charge is dismissed.

Gregori Miakouchkine and ODM

[82] Given that Ms Miakouchkina was the operating mind of ODM in relation to the business of arranging assessments and treatments under the Statutory Accident Benefits Schedule, and given that the Prosecution has not proven its case against Ms Miakouchkina, the Court adopts the same analysis and conclusions with respect to the charge against ODM. That charge too is dismissed.

[83] Finally, as the Prosecutor has not proven to the requisite standard that the representations made by ODM were false or misleading at the time they were made, it cannot follow that Gregori Miakouchkine could be convicted for failing to take reasonable care to prevent his corporation from doing something that has not been proven to have occurred, that is, an offence under S.447(2). Accordingly, Gregori Miakouchkine is not guilty and the remaining charge against him is also dismissed.

Released: August 12, 2013

Signed: Justice of the Peace M.H. Conacher