Ontario Court of Justice

In the Matter of the Provincial Offences Act, R.S.O. 1990

Her Majesty the Queen v. Giovanni Duque

Proceedings at Trial

Before: His Worship Justice of the Peace V. Bubrin

Date: June 20, 2013

Location: 70 Centre Avenue, Toronto, Ontario

Charge: Section 149(2) – Workplace Safety and Insurance Act

Appearances

• Ms. R. Rosenberg – WSIB Prosecutor
• Mr. M. Brodzky – Counsel for the Defendant
• Mr. G. Duque – The Defendant (In Person)

Interpreter: Hernando Coronell, Spanish Interpreter

Reasons for Judgment

BUBRIN, J.P. (Orally):

The Court will now deliver its judgment in the case of R v. Giovanni Duque. Mr. Duque stands charged that, between the 11th day of October, 2010, and the 1st day of September, 2011, at or near the City of Toronto in the Toronto Region, and elsewhere in the Province of Ontario, he did willfully fail to inform the Workplace Safety and Insurance Board of a material change in circumstances in connection with his entitlement to benefits within 10 days after the change occurred, contrary to section 149(2) of the Workplace Safety and Insurance Act of 1997, Statutes of Ontario, 1997, Ch. 16, as amended.

Trial Evidence

The trial into Mr. Duque's case took place on February 25th and 27th, 2013, earlier this year. A full two days were required. The Court heard from six witnesses called by the prosecution and the defence, including Mr. Duque.

Prosecution Witnesses

Called by the prosecution was:

1. Ms. Consuela Gonzales – a friend of Mr. Duque's and the owner and operator of a restaurant in Toronto, Las Americas Café

2. Elio Gallia – the Workplace Safety and Insurance case manager who managed Mr. Duque's WSIB claim file at its initial and earlier stages

3. George Banados – an investigator with King-Reed and Associates, hired by the WSIB to conduct surveillance on Mr. Duque on September 29, 2010, October 4 and 6, 2010

4. Margaret Hotten – a case manager with the Workplace Safety and Insurance Board who took over Mr. Duque's file from Mr. Gallia. The surveillance conducted by King-Reed and Associates also included a date in May of 2011, when Ms. Hotten was managing Mr. Duque's file and had the authority to make decisions regarding his entitlement to Workplace Safety and Insurance benefits.

5. Diane Seminara – an investigator with King-Reed and Associates, who conducted surveillance on Mr. Duque on April 20th and 21st of 2011, and subsequently on the 2nd, 4th and 5th of May, 2011

6. Michael Logozny – Senior Investigator in the Investigations and Prosecutions Branch of the Workplace Safety and Insurance Board, who swore the information laying the charge against Mr. Duque

Defence Evidence

The Court also heard from the defendant, Mr. Giovanni Duque.

Legal Framework

Statutory Obligations

According to the Workplace Safety and Insurance Act, there is a continuing obligation to provide information to the Workplace Safety Insurance Board and to give notice of any material change in circumstances. Sections 23(1) and (3) speak to this directly.

Section 23(1) states that "a person receiving benefits under the insurance plan, or who may be entitled to do so, shall give the Board such information as the Board may require from time to time in connection with the person's claim."

Section 23(3) states that "a person receiving benefits under the insurance plan, or who may be entitled to do so, shall notify the Board of a material change in circumstances in connection with the entitlement within 10 days after the material change occurs."

Offences and Penalties

The consequences of failing to comply with the requirements under section 23(1) and section 23(3) are described under the Offences and Penalty section of the Act.

Section 149(1) and (2) specifically provides that "persons who willfully fail to inform the Workplace Safety and Insurance Board of such material change within 10 days of the change are guilty of the offence."

Section 149(5) states that "if persons are convicted of an offence, the Court may also order them to repay the Workplace Safety and Insurance Board any money received because of this offence. This is considered an amount owing under this Act."

Subsection 149(7) states that "this does not limit or replace the Safety Insurance Board's right to take such other steps as it considers appropriate to recover an amount owing it."

Prescribed Penalty

Section 158 describes the penalty: "A person who is convicted of an offence is liable to the following penalty: If the person is an individual... the person is liable to a fine of not exceeding $25,000, or to imprisonment not exceeding six months, or to both."

Definition of Material Change in Circumstances

The Workplace Safety Insurance Act itself does not define the term "material change in circumstances." That term is defined in the Board's policy (Exhibit 1):

"Material change in circumstances is any change that affects a person's entitlement to benefits and services under the Act. If a person fails to inform the Workplace Safety and Insurance Board of a material change in circumstances, the WSIB presumes that this is intentional and willful unless the person can demonstrate having no knowledge of the change. Decision makers determine whether the person reasonably should have been aware of the change by reviewing the facts of the case."

Standard of Proof and Mens Rea

Like in all Provincial Offences charges, the onus is on the prosecution to prove the charge beyond a reasonable doubt. Most Provincial Offences are categorized as strict liability offences where a defence of due diligence is available to the defendant.

Given the wording of the sections of the Workplace Safety and Insurance Act pertaining to Mr. Duque's case, particularly the wording in section 149(2), which states that "a person who willfully fails to inform the Board," the term "willfully" leads the Court to categorize the offence at trial as a mens rea offence.

Application of R v. Kester

The Court found the case of R v. Kester (, 38 O.R. (2nd) 294) quite helpful. In this case, the mens rea categorization places a higher onus on the prosecution. However, proof may also be by inference.

In Kester, the Ontario Court of Appeal ruled that the phrase "knowing it to be an unfair practice" requires proof by the Crown of a specific mens rea or a guilty state of mind. The decision states:

"Proof of the mens rea required by s. 17(2) of the Business Practices Act involves proof of a question of fact, not of law. If the accused did not know that her conduct was unlawful, that is not a defence, for it is a question of law and not of fact. Ignorance of the law is no excuse."

The Court draws a parallel in this case between the Business Practices Act and the Workplace Safety and Insurance Act, and the phrases "knowing it to be unfair practice" in the Business Practices Act and "willfully," the phrase used in the Workplace Safety and Insurance Act.

The Court further quotes from Kester:

"In proving the mens rea required by this section, the prosecution is not limited to direct evidence of the facts to be proved, for proof may be made by inference as well. It is open to the trier of fact, employing ordinary logic and common sense, to draw the inference from the facts proved that the accused knew that the representations were untrue or unconscionable."

Application to Mr. Duque's Defence

Given the apparent theme that ran through Mr. Duque's line of defence, even though the onus remains on the prosecution to prove the charge against him beyond a reasonable doubt, the Court addresses some of the points he raised in his defence.

His ignorance of the law, if he so claimed, is not an excuse for committing the offence. The Court further notes that Mr. Duque understood his right to his entitlement to benefits and engaged throughout the history of his WSIB file the services of several workers' advisors, who are well-versed both in the legislation, the policies, the practices, and the obligations of workers. If Mr. Duque understood and exercised his entitlement to benefits, it is reasonable to expect that he also understood, or ought to have understood, his obligations, in this case a duty to report any material change.

WSIB Reminders to Mr. Duque

The Court notes that in the correspondence to Mr. Duque before the Court in different exhibits, the WSIB warns and reminds Mr. Duque, as it does other claimants, of their obligations. Exhibit 27 is one such example, a letter dated September 17, 2010, to Mr. Duque. In the middle of this page, Mr. Duque is reminded:

"A worker who receives or claims benefits from the WSIB has certain responsibilities. You must report any material change in circumstances to the Workplace Safety and Insurance Board within 10 days of the change. A material change could include any of the following: an improvement or worsening in your condition, an increase or decrease in your wages, beginning to get or changes to Canada Pension Plan Disability Benefits, a change in your job duties or hours, a change in your ability to cooperate in treatment, early and safe return to work activities, or a labour market re-entry program."

A similar reminder is repeated on different occasions in the correspondence to Mr. Duque, including the letter from Ms. Hotten to Mr. Duque, dated September 12th, 2011, which ultimately advises Mr. Duque that there will be a discontinuation of his benefits (Exhibit 56).

Mr. Duque's Interview with Investigator Logozny

The Court also heard the evidence of Mr. Mike Logozny, a senior investigator who interviewed Mr. Duque extensively. The transcript of that interview is found in Exhibit 62. From that transcript, the Court notes that Mr. Duque does not appear to be a very articulate individual, particularly when endeavoring to articulate his thoughts in English. There was no interpreter at that interview.

At the same time, the sense the Court gets from the flow of the interview is that Mr. Duque was able to follow the thought process. He appeared to understand the questions. He was alert enough to ask that the question be repeated. So, in that regard, Mr. Duque, in spite of his limitations in the English language and literacy, in the Court's opinion was aware, or ought to have been aware of his responsibilities.

History of Mr. Duque's WSIB Claim

Initial Injury and Entitlement

The history of Mr. Duque's WSIB claims and benefits is very well documented, from the initial accident report at his place of employment at Ace Bakery as a driver and delivery man on September 20, 2005, to the discontinuation of his benefits announced in a letter to Mr. Duque by the WSIB case manager, Ms. Hotten, on September 12, 2011.

The Court relies on a summary provided in evidence by Ms. Hotten's letter to Mr. Duque on September 12th, 2011, which announced the discontinuation of Mr. Duque's benefits. Ms. Hotten summarizes the history of Mr. Duque's case in the first paragraph:

"On September 20, 2005, you sustained injury to your neck and upper back which was attributed to your assigned work duties as a delivery driver for a bakery. You reported the injury to your employer and sought appropriate medical attention. Your case was allowed, with entitlement to the neck and upper back. You later claimed entitlement to major depression and your bilateral shoulders. Entitlement to major depression was allowed, however entitlement to the bilateral shoulders was denied. Your employer was unable to accommodate with suitable modified work and you were referred for work transition services. A suitable occupation of customer service clerk was identified and you received training to acquire the required skills to obtain this position. Noting that the SO of consumer services clerk did not mitigate your wage loss, you have continued to receive a partial loss earnings benefit since completion of the work transition services."

Events Triggering Investigation

Continuing with the history of Mr. Duque's claim and file at the WSIB, an apparent combination of two events in 2010 and 2011 caused the Board to question the legitimacy of Mr. Duque's entitlement, which by this time was based on an assessment of 10 per cent and 35 per cent psychological disability.

First Event: His apparent lack of motivation for retraining, based on his performance at the Labour Market Retraining program, including his frequent absences from the program. It was later established that these absences amounted to well over 30 days in a period of two years. All the while he was on full benefits, that is, 85 per cent of his pre-injury earnings, which are non-taxable, and costing the Board over $70,000 (as spelled out in Exhibit 12), in occupational retraining and educational upgrading.

Second Event: An anonymous tip, at the beginning of June 2012 (Exhibit 19), in which the Board was informed by an anonymous caller that Giovanni Duque, while on compensation benefits, had been seen working at a restaurant for at least the last year. The caller believed he would be receiving money for compensation and was usually at the restaurant on Monday and Wednesday.

Additional Context

Two asides connected to this particular period in the history of Mr. Duque's WSIB file should be noted:

1. There appears to have been a disagreement between the LMR program and WSIB and Mr. Duque regarding the direction of his retraining. The LMR identified that Mr. Duque would be suitable for retraining in customer services, while Mr. Duque expressed a desire and preference for outdoors work and woodworking.

2. As the Board embarked on investigating the legitimacy of Mr. Duque's claim, and only three months prior to the letter of September 12, 2011, which announced the discontinuation of his WSIB benefits, Mr. Duque was reassessed for his physical disability and granted a two per cent increase, now recognizing a mild thoracic injury in addition to the previously assessed 10 per cent cervical area injury (Exhibit 52).

Surveillance Investigation

The Workplace Safety and Insurance Board's investigation was conducted in the form of surveillance, both photo and video, for which the Board hired the services of King-Reed and Associates. Video footage is contained in Exhibit 45, investigation report from 2010, specifically September 29 and October 4 and 6 in Exhibit 46, and the investigation report and surveillance on April 20, 21st, 2011, and May 2, 4, 5, 2011.

Activities Observed

These reports and video surveillance captured several activities that Mr. Duque was engaged in:

• Driving and picking up and dropping off children at school
• Attending a shopping grocery store
• Reaching out for produce
• Pushing a grocery cart
• Carrying as many as two or three bags of groceries in one episode and loading these in the car
• Carrying what appeared to be a case of beer, an 18 pack
• In another episode in the back of a restaurant, carrying empty milk crates and, at one point, counting money

Consequences

As a result of this surveillance and the analysis of the evidence in that surveillance, Mr. Duque's WSIB benefits were cut off and charges under the WSI Act were brought before this Court.

Documentary Evidence

These events came through in the testimony of the witnesses and the exhibits before the Court. Chronologically:

• A cautioned statement was taken by Mr. Logozny from Mr. Duque on July 12th, 2012 (Exhibit 62)
• Following this statement, Mr. Logozny issued a memo to the case manager of Mr. Duque's file (Exhibit 59)
• The case manager's assessment of the report from Mr. Logozny is captured in Exhibit 55 in the form of a memo to file
• All this culminated in a letter to Mr. Duque from Ms. Hotten (Exhibit 56)

Ms. Hotten's Termination Letter

Ms. Hotten's letter to Mr. Duque states as follows:

"New information was recently received in your case and, as a result, your benefits were reviewed further. The information provided supports that you have failed to report a material change and have been gainfully employed since September 29, 2010, or prior. You confirmed that you have been working for your wife's bakery as a delivery driver, as well as cleaning and cooking for a restaurant and performing other work-related duties. Noting that you have demonstrated your ability to perform your pre-injury position since September 29, 2010, and this position is available in the general labour market, entitlement to the PLOE benefit ceased effective September 29, 2010. A recoverable overpayment will be created for benefits paid after September 29, 2010, and there is no entitlement to further loss of income benefits in this case."

Ms. Hotten continues:

"I have also reviewed your entitlement to the recognized permanent impairments for your neck, upper back, and major depression. With respect to your neck and upper back, in review of your demonstrated functional abilities, I am unable to determine that there is any ongoing impairment. As there is no evidence of an ongoing impairment, the permanent impairment which was previously accepted for your neck and upper back is no longer recognized under this claim. The non-economic loss (NEL) award you received in relation to your neck and upper back will be rescinded and a recoverable overpayment will be created."

And further:

"With respect to the permanent impairment for major depression, you have demonstrated that you are capable of performing all activities of daily life, including obtaining and sustaining gainful employment. The diagnosis of major depression was provided based on inaccurate and subjective information you provided to treating professionals. There is no objective evidence to support that you are suffering from major depression. As there is no evidence of an ongoing psychological condition, the permanent impairment which was previously accepted for major depression is no longer recognized under this case. The non-economic loss award you received in relation to the psychological condition will be rescinded and a recoverable overpayment will be created."

Court's Analysis

Key Question

All this leads to the key question that this Court needs to decide: Does the Board's interpretation of the surveillance videos and reports support the conclusion that material changes, which Mr. Duque willfully failed to report, occurred?

The evidence in answer to this key question relates to three specific areas, in line with the Board's allegations:

1. Mr. Duque's alleged gainful employment since September 29, 2010, or prior
2. Evidence related to and pertaining to Mr. Duque's physical functioning as seen on the video and as documented in the file
3. Evidence pertaining to Mr. Duque's psychological functioning as reported by the investigators and as documented on Mr. Duque's WSIB file

Issue 1: Gainful Employment

With respect to the issue of gainful employment, in the Court's review of the evidence, the anonymous tip that set the investigation off did not yield any concrete evidence that Mr. Duque was gainfully employed during the time in question. The anonymous caller was never identified and it would appear that the anonymous caller never followed up with concrete information with respect to what it was that led the caller to believe that Mr. Duque was gainfully employed.

Las Americas Café

The prosecution's first witness, Ms. Consuela Gonzales, the owner of Las Americas Café, testified that Mr. Duque would occasionally come to the restaurant and assist at the cash register while she was absent, for which she gave Mr. Duque food and, occasionally and against his will, slipped him a $5 tip for his assistance. In the Court's view, this cannot be considered as gainful employment.

Los Arieros Restaurant

The suspicion, or the suggestion that Mr. Duque worked at Los Arieros Restaurant, which the investigators appear to have followed up more closely, was not substantiated. In fact, when Mr. Duque was interviewed and gave his statement to the Board investigator, he provided an explanation: that his business at Arieros was to deliver tortillas made by his wife after hours and that he helped his wife make those deliveries. Assisting his wife delivering a tray or two of tortillas does not constitute, in the Court's view, gainful employment that would obligate Mr. Duque to report to the Board.

Counting Money

Counting money outside of Los Arieros Restaurant, while suggestive, is inconclusive proof of gainful employment. In fact, if he was delivering tortillas on occasion for his wife, it stands to reason that he would be paid and that he would take that money to his wife. No indication of amount of money involved was proffered, so the evidence with respect to Mr. Duque's involvement with Arieros too is inconclusive with respect to any proof of gainful employment.

Issue 2: Physical and Psychological Condition

With respect to the Board's conclusion that Mr. Duque failed to report an improvement in his physical and psychological condition which were previously recognized for compensation, the Board relied on the surveillance video footage and reports to determine that Mr. Duque was now demonstrating full functional abilities, and the Board therefore ruled out any ongoing physical impairment and identified that as objective evidence to support that Mr. Duque was no longer suffering from major depression or physical disability.

In the Court's opinion, these conclusions are not supported by the evidence before the Court, and not supported by the evidence found in the Board's own documents pertaining to Mr. Duque's compensable disabilities, both physical and psychological.

Board's Failure to Consider Medical Reports

The Court is left with the impression that, in this regard, the Board failed to consider and appreciate its own medical reports on Mr. Duque's WSIB file. In this Court's view, the standard against which the Board ought to have assessed its suspicion of material changes in Mr. Duque's physical and psychological disabilities were the conclusions confirmed by medical professionals, and not simply the observations made during brief and limited episodes of surveillance.

Surveillance Observations vs. Medical Limitations

The observations that Mr. Duque was able to walk, drive a family vehicle, shop for groceries, carry grocery bags, carry an 18 bottle case of beer, carry one or two empty cartons of milk, these episodes do not, in and of themselves, prove that Mr. Duque was now able to function in excess of his previously recognized and compensable disabilities.

Even a cursory review of the medical reports on Mr. Duque's WSIB file show that what Mr. Duque was observed doing in the course of the surveillance does not match the limitations assessed by the Board. In Exhibit 8, for example, Mr. Duque was informed:

"You are considered to be permanently partially disabled and fit to return to suitable work. A permanent impairment is evident with respect to your neck and upper back. Permanent restrictions are to avoid no above shoulder work, no repetitive use of the neck, upper back, and shoulder area, no heavy lifting, pushing or pulling."

These are the limitations described by the Board.

Analysis of Observed Activities

What Mr. Duque was observed doing does not match with the above-described limitations:

• There's nothing in the evidence to show that Mr. Duque was doing any above-shoulder work
• There's nothing in the surveillance video report to indicate that there was a repetitive use of the neck, upper back, and shoulder areas
• There's nothing in the surveillance videos or reports to indicate that Mr. Duque was engaged in any heavy lifting, heavy pushing or heavy pulling

Similar evidence is found in Exhibit 9, where Mr. Duque's persistent symptoms were described in similar terms.

Consistency with Medical Documentation

This seems to be consistent with information found throughout Mr. Duque's file. The Court mentions the ergonomist's report at Exhibit 33 as an example, the physical and psychological report in Exhibit 22, the psycho-vocational report in Exhibit 38. All these appear to describe Mr. Duque's limitations pertaining to the already-mentioned affected areas of his body. The Court has carefully reviewed the description of these and does not find that they match the activities that Mr. Duque was performing when he was being monitored. Those activities that he was conducting when he was being monitored, in the Court's view, do not exceed Mr. Duque's limitations that are described in the medical reports.

Lack of Medical Consultation

The Court also takes into consideration the lack of evidence that the Board consulted with its medical professionals to get an opinion whether the activities Mr. Duque was engaged in when monitored were consistent or inconsistent with his compensable disabilities as documented on the WSIB file.

The Court notes that there are no physicians' reports after the letter by Ms. Hotten to Mr. Duque, announcing the discontinuation of his benefits. There is, however, a letter from Dr. Rodin, the psychiatrist, in Exhibit 65, dated February 21, 2013, in which the doctor provides an opinion, confirming that Mr. Duque continues to suffer from depression.

Board's Assessment of Disability Status

The Court also notes that the Board did not consider Mr. Duque to be totally disabled and unable to function with respect to normal daily activities when they discontinued his benefits. In fact, at the time the Board was investigating Mr. Duque, he was considered stable and fit enough to participate in the LMR program to determine his occupational options in the light of his disabilities.

While the Board may have had good reason to reassess Mr. Duque's levels of disability and assess him for his eligibility for non-economic loss benefits, given his poor performance and attendance in the LMR program, the evidence gathered by the investigators was, in this Court's view, insufficient to show that there was material change in Mr. Duque's physical and psychological condition to obligate him to report to the WSIB.

Conclusion

Based on this interpretation and analysis of the evidence before it, the Court concludes that the prosecution has not proven the charge against Mr. Duque beyond a reasonable doubt, and the charge against Mr. Duque is therefore dismissed.

Transcript Order

The Court did not prepare a written copy of its Reasons. However, a transcript was ordered and subsequently completed on September 23, 2013.

Released: June 20, 2013

Justice of the Peace V. Bubrin

Certificate of Transcript

Evidence Act, S.S. 5(2)

I, Judy Denny, certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Giovanni Duque, in the Ontario Court of Justice, Provincial Offences Court, held at 70 Centre Avenue, Toronto, Ontario, taken from Recording No. C2-20130620-1500, dated June 20, 2013, which has been certified in Form 1.

Date: September 23, 2013

Authorized Person: Durham Reporting & Mediation Services