R. v. Kathirkamapillai

Court Information

Court: Ontario Court of Justice, Toronto Region

Citation: 2014 ONCJ 255

Before: Her Worship Mary A. Ross Hendriks

Hearing Dates: April 29, April 30, and December 3, 2013

Judgment Date: May 20, 2014

Parties and Counsel

Crown: Her Majesty The Queen

• Counsel: Ms. R. Rosenberg, WSIB Prosecutor

Defendant: Selvamenan Kathirkamapillai

• Representatives: Mr. R. Kanaga and Mr. J. Lopez

Introduction

[1] These are my Reasons for Judgment concerning the alleged offence, constituted under Part III of the Provincial Offences Act, R.S.O. 1990, c. P. 33 (the "POA"), as set out in the Information, sworn May 4, 2012. This Information alleged that between January 9, 2012 and March 27, 2012, at the City of Toronto, Toronto Region, Selvamenan Kathirkamapillai (the "Defendant") wilfully failed to inform the Workplace Safety and Insurance Board ("WSIB") of a material change in circumstances, in connection with his entitlement to benefits within 10 days after the change occurred, contrary to The Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, as amended (the "Act"), section 149(2).

[2] The Defendant, with the assistance of his representatives and through an accredited Tamil interpreter, entered a plea of Not Guilty to the charge, as arraigned.

Issues

[3] The following issues are relevant to this trial:

(a) Did Mr. Kathirkamapillai experience a material change in his circumstances?

(b) If so, did he willfully fail to inform the WSIB of such a change?

Decision

[4] The alleged offence has not been proven beyond a reasonable doubt. The matter is dismissed.

Evidence

Prosecution's Witnesses

Yasmin Rizvi

[5] The first witness for the prosecution was Yasmin Rizvi, Claims Manager, for the WSIB. She has been with the WSIB for 29 years, and has been a case manager since 1995. She was assigned to the Defendant's matter in 2010, although someone else handled it at the outset of his claim. She testified that she has access to all of the previous claim manager's notes. While she knew that she had spoken to him on the telephone when she came on his file, she could not say how many times she had spoken to him (Exhibit 8).

[6] She testified that all files and notes are maintained electronically, and that the WSIB does not maintain paper in its files. Instead, documents are scanned and maintained electronically. Further, she testified that the Policies of the WSIB are also stored in its computer system, and that each Policy has a code. She said that the WSIB's Policies are available to the public, online.

[7] Ms. Rizvi identified the WSIB "Policy on Material Change for Worker," document 22-01-02, dated March 3, 2008 (Exhibit 1). She relies upon the WSIB Policies and Guidelines when making decisions about files.

[8] She explained that under the Act, a worker may receive one of the following: Full Loss of Earnings ("LOE"), which is capped at 85% of net average pre-injury earnings; Partial Benefits, based on what she feels that he or she is able to do, which are his or her potential earnings, versus pre-accident earnings, to a maximum of 85% of the net average difference; Health Care Benefits, which covers physiotherapy and medical treatments, which are paid to the provider, not the worker; or Retraining Programs, in which the worker is provided with retraining for suitable employment when able to return to work.

[9] Ms. Rizvi identified two Worker Reports (Form 6), one Employer Report (Form 7) and one Physician's Report (Form 8), with respect to the defendant (Exhibit 2).

[10] The date of the workplace accident was February 14, 2005. She reviewed the forms in his file, and said that the defendant was paid Full LOE benefits. Memo #10, dated May 12, 2005 (Exhibit 3), spoke of the February 14, 2005 injury. It described his primary employment, and his secondary, concurrent employment, with Andy's Delivery, as a delivery driver. Memo #10 indicated that the WSIB wanted more information about his secondary employment.

[11] She testified that the WSIB monitored his progress, and in Memo #81, dated May 30, 2006 (Exhibit 4), the WSIB believed, based on his medical information, that he could not return to any type of work at all. It gave him Full LOE, plus Non-Economic Loss Award for functional impairment. Within Exhibit 4, she described how the WSIB decided that he was disabled, based on his medical reports, and that the WSIB would not offer him Labour Market Re-entry ("LMR"), but provide him with full benefits instead.

[12] Ms. Rizvi identified Memo #94, dated January 18, 2007 (Exhibit 5), and Memo #96, dated January 26, 2007 (Exhibit 6). Memo #94 indicated that a previous adjudicator found him to be unemployable. However, she testified that the WSIB needed to explore if he was able to do some work, so they sent him for a further medical assessment. This assessment was conducted at Toronto Western Hospital, at its foot and ankle specialty program (Exhibit 7). At p. 2 of this report, dated October 10, 2006, it recommended "the following permanent precautions" for him:

• 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

This report was based on the worker's statement, and the hospital's review of his prior medical information, obtained from prior treating physicians.

[13] Ms. Rizvi also identified Memo #113, dated July 13, 2010 (Exhibit 8). In this Memo, the WSIB sought information from him to confirm if he was working or not, and sought information from him with respect to his earnings. He advised that he was not working, and that he was on medication for depression. She also identified an Earnings Questionnaire, dated April 4, 2010, she sent out while conducting her review, which he returned (Exhibit 9).

[14] She referred to a computer print-out she made of his Forms History (Exhibit 11), which indicated that she had sent him this Earnings Questionnaire (Exhibit 9) and a system-generated periodic review of his loss of earnings ("PRELW"), in the mail on May 7, 2011 (Exhibit 10). The PRELW advises claimants to report any material changes within 10 days to the WSIB. Exhibit 9 was answered by the defendant, signed and dated. She was able to tell from her print-out that he had also responded to Exhibit 10.

[15] She also identified an Earnings Questionnaire (Exhibit 12). He completed it on May 26, 2011, and returned it to her. She also identified a generic form, which she believed the WSIB sent to him (Exhibit 13). The actual form, completed for him, went out on May 9, 2011 (Exhibit 41). It also included, "an important reminder." However, during cross-examination, it became apparent that Exhibit 13 was a very different form letter, and that it did not correspond to Exhibit 41. Moreover, she admitted that his Forms History (Exhibit 42) was not a full history. While Exhibit 42 covered the period of time from December 14, 2009 to May 10, 2011, it was missing the second half of 2011 and all of 2012.

[16] Ms. Rizvi described the CL6 form letter (Exhibit 14), which she believed had been computer generated and sent to him on September 1, 2010, based on her review of his form history (Exhibit 14, notation CL67QU). This is an important form letter, since it states that it is "an important reminder" to tell the WSIB of any material change.

[17] Ms. Rizvi continued to be assigned to his file in 2011. She testified that in Memo #14, dated March 3, 2011 (Exhibit 15), she was reviewing his file with respect to his Full LOE benefits. It had been six years since the date of his accident. She needed to set a final review date, since a decision needed to be made. Prior to the final review, she required all of his medical information. She deferred his lock-in for full benefits (100%), because she needed more medical information and an update from his psychologist.

[18] She received a letter from Rouge Valley Health System, dated March 29, 2011, which was a letter from his psychologist (Exhibit 16). It said that he suffered from a chronic Major Depressive Disorder. She testified that the letter from his psychologist stated that his GAF Score was 50 to 60, and added that she could not recall what 50 to 60 meant. However, when shown her memo, dated May 10, 2011 (Exhibit 17), it indicated that a GAF score of 50 to 60 meant that he was capable of doing work, since GAF measures the level of impairment for a psychological condition.

[19] Ms. Rizvi spoke to him, asked him how he felt and offered him transition services, as outlined in her memo, dated May 19, 2011 (Exhibit 18). He advised her that he was in constant pain from his foot injury, and that one option was to amputate, but he declined because he might still experience phantom pain. He advised her of his depression and weight gain. He told her he was on crutches, used a walker at home, and said that he was incapable of going back to work. He told her that he could not walk for very long, still relied on medication, and that even a blanket hurt. He anticipated having difficulty with any retraining opportunities.

[20] She identified Memo #113, a memo to file, dated July 13, 2010 (Exhibit 19), in which she wanted his 2009 Notice of Assessment.

[21] She also identified Memo #120, dated June 22, 2011 (Exhibit 20), which was a memo to the WSIB's internal medical consultant. She wanted to know if his organic condition had worsened since he was assessed. She wanted information about his organic ankle condition and his psychological condition. The WSIB's internal medical consultant, Dr. Lou, asked these questions of her. She wanted a medical opinion to determine if his non-economic loss, being his organic condition, had worsened since the time of the award, as indicated in her Memo #121, dated June 22, 2011 (Exhibit 21).

[22] She identified Memo #123, which was a response, dated July 2011, from another WSIB medical consultant, Dr. Preobrazenski, dated July 18, 2011 (Exhibit 22). His response to her indicated his view that the ankle and foot were stable, and that at some point, the defendant might undergo amputation, but that another review was necessary, to ensure that his psychological condition did not worsen. Dr. Preobrazenski suggested that they obtain his clinical notes prior to the injury. Dr. Preobrazenski was of the view that the defendant was on numerous and very sedating medications, and suggested that based on these prescriptions, he would benefit from an independent psychological assessment. Dr. Preobrazenski questioned why the defendant was not filling his prescriptions regularly. Following up on this, Dr. Preobrazenski spoke with the defendant's physician, Dr. Mahendra. He wrote in Memo #129, dated August 5, 2011 (Exhibit 23) that the defendant was unable to explain many months of non-use of certain sedative and psychotropic medications.

[23] Dr. Preobrazenski wrote Memo #132, dated August 18, 2011 (Exhibit 24), in which an occupational therapist believed that it was premature to consider offering him a stair-glide or scooter, because he was managing well on his crutches, and could do partial weight bearing. Ms. Rizvi believed that he was very inconsistent with his use of psychotropic drugs, and wanted direct observation placed on him. She explained that inconsistent use of prescription medications is a red flag for WSIB medical consultants.

[24] She wrote Memo #131, dated August 17, 2011 (Exhibit 25). In this memo to file, she telephoned him and asked him about his activities and inquired about his daily living. Specifically, she asked him if he helps out in the household, and he replied that he did not. He did do some grocery shopping, because of pressure from his wife. He told her that he doesn't drive, and that his family drives him, although he advised her that he had his driver's licence, had a car and was bondable. He told her that he used a walker with a seat. His family had been pressuring him to go out, and he did go to the lake once in a while, and walk short distances. He said that he had been experiencing swelling of his leg, and that his wife helped him shower. He told her that he spent most of his time watching television, reading books and talking with family members. He advised her that he has not worked since his injury and was unable to do so, because of his back and leg pain. She offered him transition services, to try to get him back to work. Her Memo #131 also states as follows:

He does not drive. Has tried in the parking lot using his left leg and being on cruise control. Cannot use the brake and therefore doesn't drive. Also the sleeping pills (trazeodine 100 mg) makes him tired and will not drive.

[25] During cross-examination, when asked if she had asked about material changes during their call of August 17, 2011, she said, "no." She explained that she was gathering information about what he was doing, his health status, and what he was capable of doing, which she said are material change inquiries.

[26] She conducted a Work Transition Internal Interview with him, and Laurie Armstrong, who is a work transition specialist with the WSIB (Exhibit 26). The goal was to try to find a suitable occupation for him based on his medical status. She did not stay for the entire meeting. On June 2, 2011, which was the meeting date, at p.7 of this memo, Ms. Armstrong wrote that the worker would not attend the next meeting because of his phobia of machinery. In this same memo, Ms. Rizvi conceded during cross-examination that this memo indicated that he had reported that he tried to drive with his left foot and with cruise control, and that he no longer drives. In this interview with his work transition specialist, Ms. Armstrong noted in her memo as follows:

The worker's first language is Tamil but he was able to communicate in English during his interview. His representative occasionally translated into Tamil, but this occurred rarely.

[27] WSIB referred him to an Occupational Therapist. Memo #138, dated October 18, 2011 (Exhibit 27) indicated that he met with a nurse, S. Wilson. Ms. Wilson then wrote to Ms. Rizvi. Ms. Wilson suggested a scooter, but he declined, and did not want to discuss his injury. He told her that he went upstairs in a seated position. He advised Ms. Wilson that he was not driving. He described himself to her as being housebound.

[28] In a 2011 memo to file written by Laurie Armstrong (Exhibit 28), she questioned if he could work from home, perhaps doing call centre work or online sales. She described him as not motivated and rarely leaving his home. She also noted his lack of fluency in English and his lack of computer skills, and noted that he would need ESL and IT training. He had not worked since the injury. Her recommendation was that he not be provided with work transition services.

[29] Ms. Rizvi testified that she recommended surveillance be placed on him, based on what she termed the "red flags" in his file. She said that an internal medical consultant believed that he was not taking all of his medication, and they wanted observations conducted to determine if what he said was accurate. She sent this request to the WSIB's Regulatory Services Branch to see if surveillance would be appropriate.

[30] Ms. Rizvi testified that she had watched the surveillance results, which had been conducted in December, 2011, at the WSIB office, and wrote a memo to file about it, Memo #142 (Exhibit 29).

[31] Based on the surveillance video, conducted from December 12 to 21, 2011, he was seen walking, driving for 40 minutes at a time, and bending on his knees to pray for two minutes. He was seen in and out of grocery stores, carrying boxes filled with Styrofoam containers of food, and at a self-serve gasoline station, obtaining gas and air for his car's tires, without a crutch. However, he had not reported any change to his impairment level.

[32] Based on her review of the surveillance conducted, she believed he could resume work as a delivery driver, since his second job prior to his injury was delivering newspapers. Since she decided he could work "full time as a delivery driver", she reduced his income to partial benefits, in her letter to him dated April 12, 2012 (Exhibit 30). He remained entitled to health care benefits. This letter indicated that this was an "administrative decision," which he could appeal.

[33] Ms. Rizvi also identified a full form history document (Exhibit 31), which was for background information only. It explained all the different computer-generated letters purportedly sent to him by the WSIB, and the codes for each of those letters.

[34] During cross-examination, she was shown a letter from William Osler Health Diagnostic Department, dated February 14, 2005 (Exhibit 32). She agreed with this letter that he had serious injuries, and which she described as a "serious right ankle fracture," and nerve injury. She added that this medical information was already in his file.

[35] Ms. Rizvi was shown a memo written by a nurse consultant, dated October 16, 2007 (Exhibit 33), in which he had reported a non-compensation head injury, e.g. he reported that he fell down the stairs at his home and needed 26 stitches. When asked if this was also a material change, she said yes.

[36] Ms. Rizvi testified that he was able to communicate with her appropriately in English. She testified that she had talked to him two to three times. When she asked if he was able to drive, and he reported that he was not able to drive. She added that she documented all of their conversations. However, she added that she could not confirm the number of times she spoke to him, without being shown the entire file.

[37] When shown his Non-Economic Loss ("NEL") Evaluations, she agreed that they both indicated that he could bend, squat and lift, although his ability to do so was limited, and that he could not weight-bear with his right foot (Exhibits 34 and 35). In Exhibit 35, it indicated that he suffered from post-traumatic arthritis related to injury, and that he could only sit for one hour. When pressed, she was unable to point to any document that stated that he was totally disabled.

[38] When shown the letter to Ms. Aldred of WSIB, from Dr. Paul Morris, dated May 22, 2008 (Exhibit 35), it indicated that he could not sit for more than one hour, and needed assistance with bathing, and going up and down stairs, and had limited ability to reach or carry things, she testified that she was aware of his limitations when she authorized surveillance on him. In her opinion, he was more functional than he was reporting to be.

[39] During cross-examination, she testified that he scored between 50 to 60 on the Global Assessment of Functioning ("GAF") Scale (Exhibit 36). A score of 50 to 60 is serious to moderate. She agreed that this report did not state that he was able to work. The GAF Scale, which is issued by the Ministry of Citizenship and Immigration Canada, states as follows:

60: Moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with co-workers).

50: Serious symptoms (e.g. suicidal ideation, severe obsessive rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (no friends, unable to keep a job).

[40] When shown the CAMH report, dated August 30, 2011 (Exhibit 37), on p. 5, she noted it said that he attended church every Tuesday and attended temple twice per year, and on p. 10, it indicated that his GAF score was currently 55 to 65. This report also described his stress levels, and at p. 15, it stated that he reported that his mood went "up and down." On p. 19 of this report, it stated that his prognosis to return to work in any capacity was "guarded to poor." In his self-reporting to CAMH, he advised them that he spent 90% of his time living on his sofa, watching television, reading, and that his family had been encouraging him to go out (Exhibit 37).

[41] It is notable that this CAMH report (Exhibit 37), prepared by the Psychological Trauma Program, was created to evaluate his psychological status as it pertained to his work-related accident. On p. 2, it stated:

The full psychological battery was not administered to Mr. Kathirkampillai because of his limited English fluency. For the purposes of the present assessment, Mr. Kathirkampillai was administered the following instruments:

• Structured Clinical Interview for DSM-IV Axis I Disorders (SCID-I/P) – A semi-structural interview of the DSM-IV Axis Diagnosis.
• Miller Forensic Assessment of Symptoms Test (M-FAST) – A structured interview designed to provide information regarding the probability a respondent is malingering a psychiatric illness.
• Clinician Administered PTSD Scale for DSM-IV (CAPS-DX) – A structured diagnostic interview designed to aid in the assessment of the presence and severity of Post-Traumatic Stress Disorder symptoms.

[42] Again, when shown the CAMH Psychological Trauma Program discharge summary, dated September 22, 2011 (Exhibit 38), on p. 3, it indicated that he was not able to work in any capacity, due to the severity of his current anxiety and pain-related difficulty. It further indicated that his prognosis to return to any kind of work was guarded. When asked if she had decided to override his doctor's views, she replied, no, that she required their input.

[43] When shown the CAMH report, dated September 23, 2011 (Exhibit 39), she testified that it mentioned his overuse of alcohol. She acknowledged that it said he was taking Seroquel and Nitrazepam, and that his family had contacted his doctor because of suicidal threats (p.3). She responded that she did not know if he had attempted suicide, although the report mentioned his suicidal thoughts. This report also indicated that his daughter had taken over their finances, there was a strain in the marriage, and that he was irritable and made hurtful comments (p.10). Under psychological issues, on p. 13, it stated that the author of the report did not find that Mr. Kathirkamapillai was incapable, in psychological terms, of managing his finances or driving a motor vehicle. When asked if she had asked him if he had used his right foot to drive, she responded that she had not.

[44] When asked if she had ever asked him if he had changed his medication, she was not sure. She said that she had asked what he was taking.

[45] She was shown the September 23, 2011 CAMH report (Exhibit 39), which indicated at p. 15 that he had not recovered psychologically. While she testified that the WSIB believed he had achieved his maximum psychological recovery, she believed that he could recover further if he followed recommendations, such as taking medication, although she conceded conceding that there were conflicting medical opinions.

[46] She was shown a document from Andy's Delivery Service, dated June 1, 2005 (Exhibit 40). Prior to his accident, this had been his second job, delivering Toronto Star newspapers to 210 to 230 homes, during the week. Based on the surveillance done, she concluded that he was again making deliveries of food to restaurants and grocery stores. Thus, she reduced his loss of earning to that of a delivery driver's earnings. She did not refer him back to a WSIB transition specialist, since he had declined her previous transition offer. She agreed he could not return to his primary, pre-injury job.

[47] There was an indication based on his Forms History that the letter from WSIB advising him to report a material change was sent out on May 7, 2011 (Exhibit 42). Ms. Rizvi assumed that the May 9, 2011 letter, which was addressed personally to him, was the same letter as the automated May 7, 2011 letter, which should have been mailed to him, along with a material change periodic review (Exhibit 43). She explained that since the system is automated, there can be a two-day delay in dispatching letters. According to her documentation, there should have been two letters sent out, a questionnaire from 2010, and the May 7, 2011 periodic review letter. A blank letter (Exhibit 43) was provided as an example, but its value at this trial was purely speculative, since no evidence was provided that it was ever sent to the defendant. However, the WSIB did produce a letter addressed to him personally, dated May 30, 2006, which advised him of his level of entitlement, and stated that he had to advise the WSIB of any material change (Exhibit 44).

[48] She identified a letter from RMS Consultants, dated June 19, 2005 (Exhibit 45), and WSIB's reply (Exhibit 46), although the reply contained an address that she conceded was possibly incorrect. These documents address the outcome of the investigation and the surveillance.

[49] When asked if she could identify any documents indicating that he made any financial gain from making deliveries, she replied that she did not review files based on financial gain. She referred to Policy 23(3), and entitlement to income benefit, which is similar to s. 23(3) of the Act. She also testified that there has not been any notice of any income received by him, to the Canada Revenue Agency ("CRA"), for example.

[50] When asked if he had told her that his medical condition was worsening, she replied that she was not aware that he had said that, no. She was shown a letter dated June 6, 2011 (Exhibit 47), addressed to her, which she identified. It asked her to consider a review of further benefits or to consider if he was entitled to other benefits. She did not think it reflected a worsening of his condition, and no ruling was made to that effect at that time. Moreover, he would have had to provide medical documentation to support such a request. She also noted that the problems identified in this letter were not related to his compensible condition, e.g. his issues with his neck and shoulder were not related.

[51] When shown the letter sent by Steven Anderson to the defendant, dated May 30, 2006 (Exhibit 48), she was unable to confirm that the defendant or his representative had received it, since the defendant's home address was incorrect. However, she also identified the other copy of the same letter, which was sent to his representative, Mr. Kanaga (Exhibit 49).

[52] When she was shown Exhibit 48, she testified that the WSIB routinely sends out letters with respect to material changes, but that she could not recall if she had ever personally instructed the defendant to report any material changes. She did not telephone him and explain the concept of a material change. She added that the Board's employees do not normally telephone individuals, but instead, rely on the letters they send out.

[53] When asked about the letter from RMS Consultants (Exhibit 45), that stated that at the time of the accident with heavy machinery, that the defendant was already taking heavy medication and did not feel the pain for a few days, she did not know what prescription medications he was already taking at the time of the accident.

Chris Clark

[54] The prosecutor also called Chris Clark as a witness. Mr. Clark was a licensed private investigator, who has been so licenced by the province since 2003. Prior to that, he was a special constable at Queen's Park.

[55] He testified that he began surveillance on the defendant, at the request of his employer, and he took the video tape of the defendant which was played at this trial. He sent a letter to Ms. Cairns, dated December 11, 2011 (Exhibit 50), which detailed the dates and times of his assignment from the WSIB. He also prepared a report regarding his surveillance of the defendant (Exhibit 51). His instructions from the WSIB were to record the defendant's day to day activities, and he if found that he was working, to following him for two or more days. He was asked to monitor his general activity, to see what he was doing. Mr. Clark testified that he has had no special training to make a diagnosis, and that his role is to describe what he sees.

[56] Mr. Clark identified the video he took, as it was played at this trial.

[57] On December 12, 2011, at 10:38 a.m., Mr. Clark conducted surveillance on the defendant. In this portion of the video, two females are observed in a car, but the defendant is not in the car. One of them returns to the residence belonging to the defendant.

[58] On December 12, 2011, at 12 p.m., a male was seen driving a car, and he pulled into an alleyway in downtown Toronto, in the Lansdowne area. His vehicle was the only vehicle in the alley, and his trunk was open, but Mr. Clark could not see what was in the trunk. He could not say with any certainty what the front of the building was used for, although he guessed it was a Sri Lankan restaurant. He then drove to Gore Road, in Brampton. When he emerged from the car in Brampton, he was carrying some boxes out of the car with both hands, assisted by a crutch. He carried the box with his left hand, and used the crutch with his right arm. He carried them into an establishment, known as "Royal Taasty Bakery." His delivery of these boxes took place between 1:10 and 1:25 p.m. on December 12, 2011. Mr. Clark observed him having a limp, and he used the crutch at times. He could not see the defendant's face. On his way out of the bakery, the boxes appear to be empty. He was walking with a crutch.

[59] On the same day, he was observed attending at a different store, "Asian Cash and Carry Grocery Store." He left the store pushing a shopping cart, and unloaded items into his vehicle. He drove away at 1:36 p.m. Again, he carried the bags with one hand, and used his other arm for his crutch.

[60] In the video, he was observed at 1:55 p.m.at Highway 427 and Brown's Line, and then he stopped at a Pioneer Gas Station. He was observed without his crutches, putting air in the tires, and bending over to do so. Initially, he had his left knee on the ground, and the second knee was bent while he filled his tire with air. At one point, he switched knees. It was not clear from the video whether or not the defendant leaned on the car. He put the hose back. This incident of putting air in the tire took approximately one minute.

[61] After he left the gas station, he was observed travelling to Christ the King Catholic School, on Lakeshore Blvd. West, Toronto, although Mr. Clark testified that he did not follow him.

[62] At 2:13 p.m., on December 12, 2011, Mr. Clark testified while observing the video that the defendant pulled into the alleyway that leads to his residence. A female left the residence at 3:11 p.m., and that ended the surveillance for the day. Mr. Clark testified that the defendant did not stop or slow down for a speed bump that lead to his residence, while the defendant was driving the car.

[63] On December 13, 2011, at 7:12 a.m., he began surveillance again on the defendant. He observed him drive to a Sri Lankan restaurant in Mississauga, called "Dosa Palace," that day, leaving home at 9:02 a.m., and travelling to Mississauga. At one point, Mr. Clark testified that the defendant waived at him in his rear mirror, which made Mr. Clark suspicious that he was aware of the surveillance. He was observed at this restaurant between 9:20 and 9:22 a.m. He was not carrying anything when he went into the restaurant. After being in the restaurant for about two minutes, starting at 9:20 a.m., he left with papers in his hand, and drove away, at 9:22 a.m.

[64] Mr. Clark testified that he stopped his surveillance at this time, because he thought that they defendant was aware of his presence. Other individuals were brought into the case, since there was concern that the defendant was aware of the surveillance being conducted.

[65] During cross-examination about Mr. Clark's observations of the defendant while driving, Mr. Clark testified that he did not know if the defendant drives with his right or left foot.

[66] The Prosecutor provided the court with the Notice given to the defendant under the Evidence Act, R.S.O. 1990, c. E. 21, and it was entered (Exhibit 52) without objection.

Ms. Jennifer Cairns

[67] Ms. Jennifer Cairns was the second witness for the prosecution. She testified that she is a Compliance Specialist, with the WSIB, and has had this role since 2000. As part of her duties, she makes referrals to the Regulatory Services department of the WSIB. As part of this role, where she sees "red flags" she may ask for surveillance to be conducted, and sends such a request to the Regulatory Services department for authorization.

[68] She testified that she had received a request from the defendant's Case Manager, seeking a period of surveillance on him. She then reviewed the evidence they had, and recommended that it be ordered.

[69] When asked why she made this recommendation, she testified that she had read his whole file, and noted that the WSIB's medical consultant found several inconsistencies between his presentation, and his reporting, particularly with respect to his use of prescription medications. She determined that they should review his entire claim, since she was concerned that he might be functioning at a higher level than he had said.

[70] In particular, upon review of materials from the Ministry of Transportation ("MTO"), it was clear that he had an active driver's licence, which included driving offences over the last few years.

[71] She testified that when she reviewed the Forms History Screen (Exhibit 43), which is the WSIB's computer-generated list of letters issued, she reviewed them to determine which automatically generated template letters had been sent to him. She testified that such letters go out, and may not have been at anyone's request, since they go out automatically, but that a case manager can request a specific letter to be sent out, as well.

[72] When shown Exhibit 14, she testified that this letter contained no date and no address, since it was a system-generated copy, and had been templated. No original letters are kept on the WSIB's compliance file, of which she has knowledge.

[73] When shown Exhibit 10, again, it did not contain an address, name, or date, because it was a system-generated letter, sent to an address on file.

[74] When asked how she can verify a letter reached a claimant, she testified that they base it on when workers call in to provide an address change. An address can only be changed at the request of the caller.

[75] When shown Exhibit 9, the earnings questionnaire, she testified that there was no mention of his income for 2010.

[76] When shown Exhibit 41, she testified that the system generated this letter, based on a code at the bottom of the letter. Based on Exhibit 43, which was a sample of a material change letter, she believed that this letter was sent on May 7, 2011, by the computer, but agreed that this date could have fallen on a weekend, which would have made it May 9, 2011. She was unable to say if this letter was re-issued. She explained that she does not keep all documents on file which are system-generated.

[77] When shown Exhibit 34, his Non-Economic Loss ("NEL") Evaluation, dated May 8, 2008, completed by Dr. Morris, with the assistance of a Tamil interpreter, she noted that his whole person impairment level was 30%.

[78] When shown the WSIB's NEL Decision, dated June 30, 2008 (Exhibit 35), she recognized the document. It stated that his benefit had been increased to reflect his psychological impairment as well as his physical injuries. She agreed that it indicated he had only limited activity, but she testified that she did not know the criteria for these forms. She reviews these reports for inconsistencies and anomalies.

[79] She was also shown Exhibit 35, which indicated that the defendant had advised the WSIB that he could stand, but was unable to bear weight with his right foot, and that he could sit for one hour. It also indicated that he had "limited balance," and that he had self-reported that he could push, pull or hold. In particular, on page 6 of this exhibit, he advised the WSIB that in terms of his trunk area, he could bend a bit, turn around, and that he reported that he could squat and lift, but these functions were "limited."

[80] She testified that she reviewed his whole file, but was troubled by the medical consultant's view of inconsistent reporting in various medical files and his concern with his use of narcotics and inconsistent use of psychotropic medications, and differing presentations. She wanted direct observation to be conducted. On September 22, 2011, she submitted her request for surveillance.

[81] She further testified that his family doctor was not prescribing psychotropic medications, and that the WSIB's medical consultant could not explain their lack of use. The WSIB's medical consultant had contacted his family doctor as of August 5, 2011. Moreover, she testified that she knew that his family doctor thought that he continued to drive, but was not certain. His family doctor had not notified the MTO of his capacity issue regarding his foot, and believed that he continued to drive, but was not certain.

[82] The issue of the status of the defendant's Ontario driver's licence was the subject of an objection, as to relevance, since its cancellation took place after the fact. However, I permitted it to be entered, since it was relevant to understanding the issues surrounding mens rea and material change.

[83] Thus, Ms. Cairns identified the letter sent by the defendant's family doctor, dated June 19, 2012 (Exhibit 53), which was sent to the MTO, in which his family doctor asked the MTO to cancel his driver's licence.

Evangelo Karanagnostis

[84] Evangelo Karanagnostis testified for the prosecution, as well. He was a private investigator, who was so licensed in Ontario. He had 16 years of experience. He received the assignment to watch the defendant from his former employer, the Investigators Group, with whom he was employed in December, 2011. He explained that they received this assignment from his manager, who had received this request from the WSIB.

[85] He testified that they worked in pairs on assignments, and each private investigator would be in a different vehicle.

[86] He conducted surveillance on the defendant on December 19, 2011. He did not edit it nor make any changes to it. He summarized his findings in his Field Report (Exhibit 54).

[87] He was also aware of the letter sent by the defendant's family doctor to MTO, to cancel his driver's licence (Exhibit 53).

[88] He identified the surveillance DVD. The first portion of this DVD, for the surveillance conducted on December 12 to 13, 2011, was entered as Exhibit 55, and the second portion, for the period December 19 to 21, 2011 was entered as Exhibit 56.

[89] On December 19, 2011, at 10:25 a.m., in Mississauga, the defendant emerged from a vehicle, carrying two plastic bags in his left hand, his crutch in his right hand, and an empty container in his right hand. The container appeared to be empty. He entered Dosa Palace, a Sri Lankan restaurant. He was observed putting some bags on the counter, and being greeted by a young woman. He exited the restaurant at 10:27 a.m., when he returned to his car, carrying a small plastic bag in one hand, and his crutch in his right hand. He drove away.

[90] On December 19, 2011, at 11:34 a.m., he drove to a laneway in the Lansdowne Ave. and Queen St. area of Toronto, where he was observed. A back door opened, and he was seen pushing boxes through this doorway, while on his crutch. Two boxes and a plastic bag were observed. He was also seen handing through styro-foam trays covered in plastic wrap through this back door.

[91] On December 19, 2011 at 12:14 p.m., he was observed carrying a large box into a store in Brampton, the Royal Taasty Bakery, while on his crutch, which was under his right arm. Inside the box, styro-foam containers were observed, stacked to the top of this box. He left at 12:17 p.m., and re-entered the same establishment at 12:18 p.m. He left at 12:30 p.m., carrying out boxes that appeared to be light-weight, and walking on his crutch.

[92] On December 19, 2011 at 12:53 p.m., he stopped at Christ the King Church, on Lakeshore Blvd., Toronto, and was observed kneeling to pray before an outdoor statue, before he returned to his vehicle and drove away. At 2:36 p.m., he was seen dropping off his wife from his car, in front of the Sun Life building in Richmond Hill. They then drove to a store on Lakeshore Blvd., Toronto. He remained in the vehicle while she entered the store, and then travelled home.

[93] On December 20, 2011 at 11:09 a.m., his wife was observed exiting a mini-van, and she was carrying plastic bags. At 11:14 a.m., on the same day, he was observed driving with a female. At 11:37 a.m., he and the female were observed dropping off boxes to a restaurant, the Royal Taasty Bakery. He carried the boxes in his left arm, and used his crutch under his right arm. He left at 11:38 a.m. that day.

[94] On December 20, 2011, at 11:39 a.m., a female was seen unloading more boxes from the backseat of the Civic, and carrying the boxes into the restaurant. Styro-foam containers were clearly seen at the top of these boxes. At 11:40 a.m., she was observed adjusting boxes inside the car, and a different male is observed carrying out a large bag and putting it in his trunk. The large bag appears to be a bag of rice or flour. At 11:54 a.m., on the same day, the woman was observed pushing a cart into Asian Cash & Carry, which in the video, appeared to be a grocery store. He left at 11:57 a.m., on that day, with no packages, and he was observed driving.

[95] On December 20, 2011, at 2:20 p.m., he was observed entering a Costco store, walking on a crutch. He was with his wife. His wife was observed picking up a small item off a shelf, and carrying it. They were both observed walking around the store, and he sampled a small food item. While at Costco, he was observed carrying a small box while walking on his crutch. They left Costco at 2:41 p.m.

[96] On December 20, 2011, at 2:42 a.m., he was observed entering into his car with his wife, and he drove. They stopped to buy propane, since this Costco had a propane service attached to it in the parking lot. He is observed bending to the ground, and another unknown male filled the propane tanks. The other male carried both propane tanks to their car. The defendant lifted the second propane tank into the car, after the unknown male had carried them to the car. They departed at 2:50 p.m.

[97] On December 20, 2011, at 3:34 p.m., he is observed at Christ the King Church, outside, praying before an outdoor statue of the Virgin Mary. He appeared to have difficulty bending, and had trouble standing up.

[98] On December 21, 2011, at 8:38 a.m., surveillance began. At 11:25 a.m., he was observed with an unknown male who delivered bags to a woman at a backdoor in an alleyway, in the Lansdowne Ave, area of Toronto. After she received these bags, he was seen driving away. At 11:45 a.m., a woman was seen exiting his car, and he exited the driver's side door with his crutch, to smoke a cigarette. During cross-examination, his representative identified this woman as the defendant's wife. They attended a different grocery store, in a plaza marked, "Shoppes of Alderwood," Etobicoke, and he followed her into it. When they exited, he carried a small package that appeared to be a meal on styro-foam, and she carried the grocery bags. He was walking with his crutch. He drove away.

[99] On December 21, 2011, at 12:10 p.m., he appeared on the video surveillance at the outdoor statue of the Virgin Mary again. He kneeled to pray. He was clearly limping as he walked away. His car was parked very nearby. He did not have his crutch with him. He was then seen driving himself home.

[100] When asked about his use of the crutch, this investigator said that the defendant, "used it most of the time." He described the defendant's movement in and out of cars as showing "pretty fluid mobility."

[101] On December 19, 2011, this investigator testified that he drove 290 kilometres that day, and subtracting the distance that he drove to and from his office, which was 60 kilometres, he estimated that the defendant drove approximately 230 kilometres that day. During cross-examination, he was asked if the defendant drove continuously, and he replied that the defendant, "stopped for deliveries." He said that the defendant took full boxes in, and empty boxes out.

[102] On December 20, 2011, using the same calculation, this investigator estimated that the defendant drove 182 kilometres that day.

[103] On December 21, 2011, using this same calculation, this investigator estimated that the defendant drove 70 kilometres that day.

Francis Crampton

[104] The prosecution's final witness was Francis Crampton. He is a Senior Investigator with the WSIB, and said that he has worked for the WSIB since May, 2002. His duties include the investigation of non-compliance with the Act. Prior to his work with the WSIB, he was employed with Toronto Police Services for 29 years, and the last five years were with the Fraud Squad.

[105] He testified that he was assigned the defendant's file on February 7, 2012, by Ms. Cairns. He conducted a criminal record check through CPIC and a driver's licence check through MTO on the defendant. There was already a MTO driving record for the defendant in the file when he received it, with a date of inquiry of December 7, 2011, but it did not state who had requested it. He identified the defendant's MTO record (Exhibit 57). He made further inquiries as part of his own investigation, and found that on March 29, 2010, he was convicted of disobey traffic sign, with an infraction date of August 14, 2009. He identified the ticket he obtained for proceed contrary to sign at intersection (Exhibit 58), in which the defendant was convicted on a deemed not to dispute basis. He was also charged with speeding on February 28, 2008, and convicted on February 19, 2009, but he was unable to locate this ticket. He also found a third infraction, which was not on the MTO record. He was able to track down the officer involved in the third infraction, and the officer had retained a copy of the ticket he wrote on March 5, 2010. This third infraction appeared on an ICON print-out (Exhibit 59). For each infraction, the date of birth and home address corresponded to those of the defendant.

[106] He testified that the defendant, in his MTO matters, appears to have used his first and last names interchangeably, and so some of his infractions were recorded under "S" and some fell under "K."

[107] He testified that the defendant received his Ontario driver's licence on July 5, 1999 (Exhibit 57). His first conviction was on August 14, 1999 (Exhibit 58), for proceed contrary to sign at intersection. His second conviction was for failing to stop before a sidewalk, contrary to the Metro Bylaw 32/92 (Exhibit 59).

[108] Mr. Crampton visited Dosa Palace, in Mississauga, to investigate whether or not the defendant had failed to report a material change to the WSIB, contrary to the Act. He had already seen the surveillance video, which indicated that the defendant had made deliveries to this and other establishments. He wanted to know if Dosa Palace had any dealings with him, and if so, how often. In particular, he wanted to know if they had been employing him.

[109] He interviewed the first individual at Dosa Palace on February 23, 2012, who is its owner. He showed him a photograph of the defendant. He responded that he knew him, and referred to him as "Menen." Mr. Crampton testified that Menen had been the defendant's nickname at his old job. The owner advised him that Menen and his daughter came every morning, between 9:30 and 10:00 a.m., and that his daughter delivered food, packaged in Styro-foam containers. The owner said his daughter came in every day, but that he had not seen Menen in a long time. He further advised it had been at least two months since he last saw him.

[110] Mr. Crampton tried to talk to the cook, but there was a language barrier, and that the cook was assisted by the cashier. On February 23, 2012, he interviewed the cook at Dosa Palace, and she told him that she identified him based on his photograph. She also called him Menen. She also said that his daughter comes, and that he also sometimes comes along, too. When asked if they were paid, she said that they received $98 every two weeks, in cash (Exhibit 60).

[111] On February 23, 2012, Mr. Crampton also talked to the owners of New Kavers Restaurant (Exhibit 60, p.3). He showed the defendant's photograph to their cashier, who replied, "I know him." Mr. Crampton was advised that the defendant used to come in and buy food, particularly fish and CDs. They denied that the defendant made any deliveries. They last saw him in December. They said that the defendant was their customer.

[112] On February 23, 2012, Mr. Crampton also attended the Bala Supermarket in Toronto, which corresponded to the back door in the laneway on MacDonnell Ave, in which the defendant was observed in the surveillance video. It was mostly a fish market. The owner advised him that the defendant brought in fish, but not food. The owner also said that he did not recognize his photograph. There were no styro-foam trays at the back of this fish market.

[113] He also attended at the Royal Cuisine Bakery in Brampton, on February 23, 2012. He spoke to the owner's brother, who said that they knew Menen. They advised him that his wife and daughter do the deliveries, and that he sometimes came along. They advised that he usually attends with his daughter, and that they only see him once per month, with his daughter. They deliver "string hoppers" on styro-foam trays, which they obtained from a different restaurant in Scarborough. They advised that each tray holds 25 hoppers, and they would bring in 30 to 40 boxes. They also advised that Menen and his daughter were not paid by the Royal Cuisine Bakery, since they had just bought the business six months ago. Menen only went in once in a while, but his daughter went in every day, sometimes with her mother.

[114] When asked if there was any evidence that the defendant was paid, Mr. Crampton testified that he believed the family was paid, and it was his inference that the daughter or perhaps his wife was paid.

[115] Mr. Crampton identified his electronic file (Exhibit 61), in which the third box on page 3 asked if mental health was an issue, and the defendant had replied, "no." Mr. Crampton also entered, "no," to the box asking if he had issues with alcohol or drugs. However, Exhibit 39, p. 3 indicated that the defendant did abuse alcohol. The prosecutor asked if there was clearly a conflict between the defendant's view, and CAMH's view. Mr. Crampton replied, during cross-examination, that he had met the defendant on March 22, 2012, and that his view was different from the view of CAMH, one year earlier. This exhibit also indicated that an interpreter was required.

[116] Mr. Crampton testified that nothing came out of his inquiries to show that the defendant was conducting a new business, only that he was conducting a delivery business. Mr. Crampton speculated in his testimony that perhaps the money was payable to the defendant's daughter to pay for her education.

[117] The prosecutor closed her case.

[118] The representative of the defendant asked for a subsequent date, in order to have Laurie Armstrong testify. He explained that she worked for the WSIB, and that he required her evidence with respect to Exhibits 26 and 28. I agreed to set another date for her to appear at this trial.

Witnesses for the Defence

Mathangi Selvamenan

[119] Mathangi Selvamenan testified for the defence. She was the defendant's daughter. She resided at the same home with her parents, in Etobicoke.

[120] She testified that she was working on a Ph.D. in neuroscience at McMaster University.

[121] Prior to the accident, she was living with her father. She testified that she was aware of his workplace injury, in which a metal sprocket fell on his foot. They nearly had to amputate his foot, because all the bones were crushed. She said that his doctors pieced it together. She said he suffered a lot of other trauma from this injury.

[122] In particular, she said that after this injury, because of his psychological trauma, their relationship changed, and "it deteriorated terribly." She avoided being at home and having interaction with him.

[123] In 2011, before this case began, a nurse was sent to their home from the WSIB, to check on his status. She asked what types of materials he needed in the home to cope, and took them shopping for things to make the bathroom and other areas accessible.

[124] Although there was nothing they could do to help him with the pain, they tried to help him with his anxiety and depression, and tried to get him out of the house and out with other people again. He had been spending too much time in the house, and she wanted him to go out of the house.

[125] She testified that when she had the time available, and her uncle needed help, she would deliver boxes for him. She said that she did this to help her uncle, and that she was not paid. She said that she works at the university.

[126] When asked if her father went with her to make deliveries, she said that he may have gone with her a couple of times, and that she encouraged him to do so. She had asked him to do it for her a couple of times when she was busy, and he agreed, after she had pushed him. She asked her dad to do it for her a couple of times in December, because she was busy. During cross-examination, she admitted that he had made some deliveries alone when she could not go with him. She denied that either she or her uncle had paid her father, and she also denied that her uncle had paid her. She said clearly that it was a "favour." She said that she did deliveries for a couple of months prior to December 2011.

[127] She testified that she had made these deliveries sporadically, and that there was no fixed schedule. She stopped making deliveries in early 2012, and stated that she no longer made such deliveries. Her evidence was that she worked as a teaching assistant at her university, and that she had become too busy.

[128] During cross-examination, she testified that this uncle was a relative from her father's side of the family, "more of a family friend, but related somehow," who had contacted her, and not her father. She pushed her father to help, because the nurse had told her to get him out more.

[129] When asked if she had ever called back the WSIB to say her father could do deliveries, she said that he couldn't do it, and that she had wanted him to determine his limitations. She said that her father did not consider his activity as making deliveries, because he felt he could not keep doing it. She felt that he needed to try to see if he could do it. At times, he went with her. She had taken him to his doctor.

[130] When I asked who drove the car, she replied that she drove. She said that he never drove the car while she was in it.

Jasinthinly Selvamenan

[131] Jasinthinly Selvamenan testified first for her husband. They have been married for 26 years and have two daughters. Ms. Selvamenan lives with her husband.

[132] Prior to his workplace injury, she described her husband as a very active person, loving to his family and children, and quiet. She testified that he did not have any prior injuries, and said that he was not taking any prescription medications prior to the accident. She said that prior to the injury, he was "good in every respect."

[133] She described his workplace injury as a heavy metal object that fell on his feet.

[134] She testified that their children take him to doctors' and physiotherapy appointments, and that sometimes, she accompanied him. He saw his family doctor, and since the accident, he also saw a psychologist. She went with him to see his psychologist once every two months, who has prescribed him with medication.

[135] She described him as losing his temper at home if he doesn't take his medication, and said that he had a short temper with their children. She added that they are not communicating properly as a couple because of his illness.

[136] She testified that he took his prescription medication, and that either she or her daughter gave it to him. When he did not take his medication on time, she said that he became sad and that he felt suicidal, stating, "I don't want to live anymore."

[137] She said that there have been times when he has threatened suicide. She testified that she had him admitted to St. Joseph's Hospital because of a suicide attempt, and that he was kept in for a full day. He had combined his prescription medications with alcohol and consumed both. She could not recall this date.

[138] When asked if she had done any deliveries, she said yes, and said that she helped her daughter. They did some deliveries for four to five months. She said she has not been paid for making deliveries.

[139] She testified that her husband had driven the vehicle, and that he had gone twice in one week. He did not feel well afterwards, and she said that he was resting at home again until he felt better and then he went out.

[140] After his workplace accident, she said that sometimes he went shopping with her, stating, "whenever he is okay, he accompanies me, I try to get him out of the house."

[141] She testified that his driving pattern had changed. He won't travel the same speed, and he was more nervous if he saw a pedestrian. She said that he could not slow down for speed bumps, and that others honked at him.

[142] When asked which leg he used for driving, first she replied his right leg. Then she said "not the leg that had the injury, but the other leg." After his representative told her that his right leg was the injured leg, then she said that he drove with his "left leg." The prosecutor objected, and I allowed the objection, stating that she had already answered the question.

[143] During cross-examination, she testified that she has a driver's licence. She has seen the surveillance video, and agreed that she was not driving in it. When asked why she did not drive, she replied that she has driven "sometimes." Neither one of them has an accessible parking permit.

[144] Prior to his workplace accident, she testified that he did not have any issues with alcohol or prescription medication.

[145] When asked why he was heavily medicated at the time of his workplace accident, she replied that she did not understand the question. She said that he was not taking medication prior to the accident. When shown Exhibit 45, dated June 19, 2005, that indicated that he was heavily medicated at the time of the accident, she said, "not to my knowledge."

Laurie Armstrong

[146] On December 3, 2013, Laurie Armstrong testified for the defence.

[147] Ms. Armstrong has been with the WSIB since May 2, 2011. She testified that she was a work transition specialist. In her role, she assisted the worker in returning to his/her pre-injury role with their pre-injury employer, and if this was not possible, then she assisted him/her in developing a plan to return to the general labour market.

[148] She estimated that she was currently working on about 30 files.

[149] Ms. Armstrong testified that she met the defendant once at the Toronto WSIB's office, on June 2, 2011. His complete file had been referred to her the day before this meeting. Prior to their meeting, she had spoken with him on the telephone to arrange the meeting. After their meeting, they did not speak by telephone again.

[150] She explained that she did not deal with medical issues, which are up to the case manager to consider, but that she had read the defendant's whole file, including his medical reports. She testified that medical restrictions for him had been given to her by his case manager. He was entitled to compensation for his right, crushed foot, low back and also for his psychological entitlement.

[151] She was shown Mary Pat Dubois's memo #26, dated August 2, 2005 (Exhibit 62). In paragraph 2 of this memo, it stated that he had a very serious injury, and that his foot was broken into many pieces. She also stated that while this memo was dated 2005, she was not given his file until 2011, and so she followed the medical precautions given to her when his case was referred.

[152] She was also shown a memo, dated February 14, 2005, from the William Osler Health Centre (Exhibit 63). She did not recall this memo. This memo described his injury at the time. She testified that she relied upon the precautions given to her by his case manager at the time of the referral in 2011.

[153] She was shown a memo dated January 16, 2012, which she wrote (Exhibit 28), and which she did recall. The purpose of the report was to review the file one more time to see if he was appropriate for work transition services. In it, she reviewed the October 18, 2011 report of the occupational therapist. The occupational therapist who had been working with the defendant said that his foot would swell after he had been upright for one hour, and that sedentary work did not seem possible at this time. She had reviewed this report, but had not spoken with the occupational therapist.

[154] She also testified about her report dated September 23, 2011, which noted his psychological barriers, which were barriers to his return to work. They included: a high level of pain; a limited skill set; a family that enabled him; limited response to medications; what seemed to be ambivalence to returning to work, and passive coping strategies.

[155] The discharge summary that she reviewed also included a prognosis with respect to his return to work, which was "guarded." She testified that it was her recommendation that he was not a suitable candidate for work transition services.

[156] She testified that after her final review of his file, January 16, 2012, his file was not referred to her again.

[157] When asked if she was familiar with the Non-Economic Loss ("NEL") Evaluation report (Exhibit 34), she replied that she could not specifically recall reviewing it, and that she has nothing to do with the non-economic loss evaluation. She did add, however, that she had considered his 44% right leg impairment, when making her assessment. His total non-economic loss was assessed as 54% by the WSIB (Exhibit 35).

[158] She was also shown another NEL report, dated June 20, 2008 (Exhibit 35). She testified that she could not recall this report, but that she would have reviewed it at the time. This report described his limited activities, e.g. his limitations with bending, squatting, lifting, holding, reaching, pushing and pulling, as well as his limited balance. At the time of the referral to her, she had been provided precautions determined by the case manager, and added that these were not her issues to decide. She was not aware of what changed for him between 2008 and 2011.

[159] She was shown a report, dated August 2, 2011 (Exhibit 26), which she wrote. She based this report on information she obtained from him during a meeting she had with him in June, 2011. It was an information gathering meeting. It was an initial review. During this meeting with her, he was present with his wife, Ms. Rizvi and his representative, Mr. Kanaga.

[160] In her memo, she described his memory loss because of the prescription medication he was taking. In particular, she described extensive precautions, including standard back precautions, rarely standing, rarely walking, some other physical limitations, and a phobia of being around machinery. For these reasons, he could not return to his pre-injury work.

[161] In her report (Exhibit 26), in the third box, health status, it stated that he was on prescription medication, and had to clean his wound four times per day, to prevent infection on his skin grafts. His doctor had been considering amputating his right foot, but had a concern that he would still have phantom pain. He had tried to commit suicide on more than one occasion. During their meeting, she did not request details of his suicide attempts.

[162] She was shown a report from St. Joseph's Health Centre, dated August 25, 2008 (Exhibit 64). It indicated that he had been suicidal. She reported that he had told her that he was suffering from memory loss. She testified that this information was what he had expressed to her.

[163] In her report (Exhibit 26), it indicated that he had a car but no longer drove. He had tried to drive with his left foot and cruise control, but no longer did, for safety reasons. She testified that he had told her this during their meeting of June 2, 2011. She also testified that the defendant had limited skills in English, and that since there was no Tamil interpreter, Mr. Kanaga had provided some translation services to him.

[164] When she had asked him about his work history, he struggled. She said that when he described his pre-injury job, he became upset, and when she asked about his previous work history, he could not provide her with his history because of his memory loss.

[165] When she was shown details of his first full time job after emigrating to Canada, which was home delivery of newspapers for the Toronto Star (Exhibit 40), she could not recall this memo. However, she testified that as of the time of their meeting, June 2, 2011, in her view, he was unable to do this job.

[166] She was also shown a memo that she wrote to Ms. Rizvi, dated August 2, 2011 (Exhibit 65), with respect to a case conference held on July 19, 2011, with respect to his matter. It had been arranged to discuss his medical issues that were preventing him from participating in work transition services. At that meeting, she was present, as were her manager, her assistant director, his case manager Ms. Rizvi, and Ms. Rizvi's manager, and another assistant director of service delivery. The purpose of this case conference was to see if the medication issue was preventing him from participating in work transition services. She could not recall if they had specifically discussed the issue of Non-Economic Loss at this meeting.

[167] She recalled that during this meeting, they discussed whether or not his use of prescription medications was preventing him from participating in work transition training.

[168] She testified that while he could not return to his pre-injury job, he could return to that employer.

[169] She identified Policy 19-03-03, Determining Suitable Occupation (Exhibit 66), and referred to Part IV, which said that an assessment report should include identified barriers, and suggestions as to how those barriers may be addressed.

[170] When asked if she recommended that he do any delivery jobs, she replied that no, she did not.

[171] In 2011, when she met with him, it was her opinion that he was not suitable for any job. She has not met with him since, and has no view of what he could do now.

[172] When shown Exhibits 5 and 66, she testified that she does not fill out those functional ability forms.

[173] During cross-examination, when asked if she had been told by the defendant that he was driving, would she have recommended it? She replied that, "I would have considered it as a possible option."

[174] She added that he had reported that he was not driving at that time, in his June 2, 2011 statement (Exhibit 26), and so she "didn't go down that road." She referred to her memo dated June 2, 2011 (Exhibit 26), and testified that he had told her that he had tried to drive with his left foot and cruise control, and stopped.

Selvamenan Kathirkampillai

[175] The defendant took the stand, on a crutch, and with the assistance of a Tamil interpreter.

[176] He testified that he has lived in Canada for twenty years, and that he was married and has two children.

[177] At the time of his workplace accident, he was employed at a company, working as a frame-cutter, using a sprocket, chains and a bulldozer. He said that he used to cut the sprocket to put it in chains. He would then use a crane to lift the sprocket, and chain it to the other side with a belt. He had been employed there for over one year at the time of the accident. He testified that he did not have any prior workplace injuries.

[178] At the time of the accident, the sprocket had to be lifted by a crane, because it was very heavy. The belt broke, and it fell on his foot. He testified that, "all my bones came out." The foot was "shattered," there was "no bones or flesh," and he was taken to the hospital by ambulance. He described all the pressure as tearing the bones off of his leg, and said that his bones were torn off his leg and that all his flesh had been "scattered." He was taken to hospital.

[179] He described the medical procedure that followed as a long, stainless steel rod inserted in his leg, so that it was "pinned like a BBQ thing." He testified that a nurse came by every day after his accident, for eighteen months. He could not walk, and used a wheelchair for two years.

[180] After the accident, he saw a psychiatrist once every two months for three years. Currently, he continued to see his family doctor once per month, and a psychologist, as well as a doctor who treated his bleeding rectum.

[181] He testified that he had responded to all of WSIB's requests. He also said that he reported to WSIB all non-accident related injuries, including a fall on his head that required stitches. Moreover, when asked if he had reported all of his activities to WSIB by telephone, he replied that, "whatever I remember, I told them everything."

[182] He testified that he has been taking painkillers, tablets for depression, sleeping pills, and that earlier, he had consumed prune juice for his issues with his rectum. Now, he was taking a sleeping pill every other day, since he has not been working. He has been tested on a machine for his sleeping and breathing issues, and said that he was advised that he woke up 48 times per hour. He continued to take prescription medication every day.

[183] Since his workplace accident, he testified that he has not returned to any form of work, nor did he receive any other income besides his benefits from WSIB.

[184] He testified that he had advised WSIB that he had attempted to drive. He said, "I don't remember exactly, but whatever I did, I informed them without hiding anything."

[185] When asked if he had seen the WSIB's surveillance video during this trial, he replied that he had. He said, "I already informed them. There was no change." When asked in chief if he had informed them of any changes to his mental or psychological abilities, he replied, "I told the doctors they sent and the therapists, and whenever I met them, I told them. Whatever they asked me over the phone, I told them."

[186] He also testified that he had told WSIB that he had tried to drive with his left foot. He denied driving with his right foot since the accident. He no longer has a valid Ontario driver's licence.

[187] He testified that he has tried to improve himself, and did whatever he was told by WSIB. He said that he tried but he has not made any progress.

[188] When shown a photograph of his left foot after the accident (Exhibit 67), he began to cry, and recounted that since this accident, he has been in pain, for 24 hours per day. He said that when his skin was peeled off, it was "hanging on the bone."

[189] He was shown another photograph of his left foot (Exhibit 68). This photograph depicted a very swollen foot. He testified that when he walked, it would swell more.

[190] He was shown a further photograph of his left foot (Exhibit 69), which demonstrated swelling, infection, and discolouration of his skin, where the skin graft had been done. He testified that he could not wear a sock on this foot, because when he did, it becomes infected. He pointed to the place on his left foot where it oozed regularly when it became infected, and began to weep again.

[191] When shown another photograph of his left foot (Exhibit 70), he testified that when he elevated his leg, there was no swelling now. He testified that he could walk now, by putting all of his weight on his left leg and using his right leg for balance. The pain varied. He said that sometimes he still went for a week without walking.

[192] He cried again when he testified that currently, his doctor recommends amputation, but has advised him that there is a 70% chance of phantom pain if he proceeds with that surgery.

[193] He said that he can normally perform various activities now, but only when there was no swelling and no pain, and even then, "only at a certain distance," and that he continued to use his crutches. He currently suffered from lower back pain, and numbness in his hand. He said that the crutches were causing pain in his shoulders.

[194] Since the workplace injury, he fell on his back, and now he could not sit for a long time. He said that he could not sleep on his bed, and that he slept on the sofa. He testified that he uses most of his pain tablets, but that they cause constipation, and that he had to drink prune juice and take medication. He testified that he was frequently suffering. He said that he sometimes wore a diaper to go out in public.

[195] In the house, his wife took care of him. He said that he could not use his hand to wipe, and that his wife cleaned him after he used the washroom. His therapist assisted him with bathing. His wife and children assist him with his personal care.

[196] Later in his testimony in chief, he said, "I had falls…washroom, steps…needed stitches," and as a result, his mouth is now numb. He was advised to take baby aspirin and attend at a hospital immediately.

[197] When asked during examination in chief about his activities on the surveillance videos, such as walking without a crutch, he replied, "I tried." He described pain and swelling, and he added, "it was so difficult, so I left it."

[198] When asked if he had advised WSIB of any limit as to what he could carry, he replied, "no, I didn't inform."

[199] He denied being paid any money other than his benefits from WSIB, including for the activities caught on the surveillance videos. He admitted that he kneeled to pray at church, which was captured on one of the surveillance videos.

[200] During cross-examination, when asked how he was able to make deliveries, drive to Richmond Hill, Scarborough, Toronto, Mississauga, Brampton, and walk without his crutch, and kneel down, and stop for a long time at a Costco store, and fill up three propane tanks, he replied, "I did not carry, I did not lift."

[201] When asked if he acted one way around the WSIB, and differently otherwise, he replied, "I did not do more than what I told them. My wife also has driven the car, but that didn't come on the surveillance video."

[202] When asked if the WSIB had provided him with Tamil interpreters during his various interviews, at first he said he could not recall it, but then added, "a few were there." When asked if he was provided with an interpreter other than his meeting with the investigator, he replied, "yes there was." However, the WSIB did not provide an interpreter for their telephone calls with him, nor when they attended at his home.

[203] He said that no one from WSIB told him not to drive. He testified that he had advised them, "I told them I try to drive, and in future, I will try to drive."

Final Submissions

[204] In closing, Ms. Rosenberg argued that his changes in his condition should have been reported to WSIB, but that he failed to do so. In particular, she relied upon Ontario (WSIB) v. Boparai, [2013] O.J. No. 2558. She submitted that the court should consider what the defendant told his doctors, therapists, and compare it to the surveillance. She also relied upon Ontario (WSIB) v. Koomson, [2011] O.J. No. 5944, and R. v. Virk [2002] O.J. No. 4102.

[205] In terms of the requirement of mens rea, she urged the court to make the finding that the defendant had the requisite mens rea, based on inferences gleaned from the surveillance. In particular, she noted that he drove extensively in December 2011, attended at a Costco store, and obtained propane tanks. No one at the WSIB had knowledge of these activities.

[206] She submitted that he had an obligation under section 23(3) of the Act to advise the WSIB, whose staff thought he was at home, because of his injuries. Ms. Rosenberg submitted that if Ms. Armstrong had been aware of his activities in December, 2011, she would have made different recommendations.

[207] Mr. Kanaga submitted that the court should consider two cases: Crane v Ontario (Director, Disability Support Program), [2006] O.J. No. 4546, and R. v. Valley, 2012 ONCJ 165. In Crane, both psychological and physical functions had to be accommodated, and the court considered how a person with disabilities should be assessed. Mr. Kanaga argued that this is a human rights issue. He further submitted, that based on Valley, and paragraph 2 of the Guidelines (Exhibit 1), there are directions on which issues to eliminate and which issues to report to the WSIB. In particular, based on section 149(2) of the Act, there is an obligation to report a material change.

[208] Mr. Kanaga argued that the court should rely on the testimony of the defendant and Ms. Armstrong, and look to his 2008 disclosure to the WSIB (Exhibit 35), where he expressly indicated his limits and indicated to the WSIB what he could do. WSIB was aware of his limitations and his functioning. He had specifically told Ms. Armstrong that he had attempted to drive, and he also told them about his limitations with bending. Thus, he submitted that his client did not willfully mislead or hide his activities.

[209] Mr. Kanaga also referred to the fact that the defendant's driver's licence was suspended, at the request of his family doctor made to the MTO (Exhibit 53). However, the WSIB knew that he had been attempting to drive (Exhibit 26).

[210] Mr. Kanaga argued that it was noteworthy that the investigators hired by the WSIB never found any evidence of gainful employment.

[211] In terms of the formal history report kept by the WSIB, Mr. Kanaga referred to Exhibits 11 and 31. There was no evidence provided to this court about how often the WSIB's computer system was updated. There was no confirmation provided to this court that the material change document was actually sent to him or his representative. Exhibits 10, 13 and 14 were sample letters of WSIB correspondence, rather than the actual material change letters sent to the defendant or his representative. He submitted that Ms. Rizvi's testimony conflicted with Ms. Armstrong's recommendation.

[212] The defendant testified that he was only provided with a Tamil interpreter on some of the occasions he met with or spoke with the WSIB, and on other occasions, he was speaking to them without that aid. There was clearly a language barrier at issue, and he could not fully articulate or explain his situation. Moreover, he was taking prescription medications at this time.

[213] Mr. Kanaga also asked the court to consider his psychological trauma, and referred specifically to Exhibits 37, 38 and 39 in this respect, which demonstrated that he was unable to perform gainful employment at that time. He also asked the court to consider his suicide attempt, which was a result of the workplace accident. He also noted that the defendant had advised the WSIB of his efforts to walk, which included balancing.

[214] Based on all of these factors, Mr. Kanaga urged the court to find that the defendant did not willfully fail to advise the WSIB, as per s 149(2) of the Act, and asked that the case against his client be dismissed.

[215] In reply, Ms. Rosenberg referred to the CAMH Psychological Assessment Report, and noted that he had spoken English to the doctors, who understood him fully. He was able to provide them with detailed histories, see September 6, 2011, p. 588. For example, he reported that his wife and children did all the chores, which was clearly disputed by the surveillance videos.

Analysis

The Nature of the Legislation

[216] Part III: Insurance Plan, of the Act, set out the legislative scheme for the "Notice of Accident and Claim for Benefits." In particular, it set out a regime of continuing disclosure, as follows:

Continuing obligation to provide information

23.(1) 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.

Effect of non-compliance

(2) If the person fails to comply with subsection (1), the Board may reduce or suspend payments to him or her while the non-compliance continues.

Notice of material change in circumstances

(3) 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.

[217] Part XII: Enforcement, establishes both Offences and Penalties under this legislation. In particular, Offences fall under section 149, as follows:

Offence, false or misleading statement

149.(1) A person who knowingly makes a false or misleading statement or representation to the Board in connection with any person's claim for benefits under the insurance plan is guilty of an offence.

Same, material change in circumstances

(2) A person who willfully 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.

[218] Subsection 149(5) contains permissible language that allows the court to consider an order of restitution to the Board, for contraventions of section 149.

[219] In addition, the Act also provides a further Penalty provision in section 158, as follows:

Penalty

158.(1) A person who is convicted of an offence is liable to the following penalty:

1. If the person is an individual, he or she is liable to a fine not exceeding $25,000 or to imprisonment not exceeding six months or to both.
2. If the person is not an individual, the person is liable to a fine not exceeding $100,000.

[220] Based on the wording of this statute, especially the use of the word "willfully" in the phrase, "willfully fails to inform the Board of a material change in circumstances" as set out in subsection 149(2), and the possibility of incarceration as a penalty, as per subsection 158(1), I am satisfied that this is a mens rea offence, see: R. v. Duque, 2013 ONCJ 648; R. v. Boparai [2013] O.J. No. 2558; R. v. Virk [2002] O.J. No. 4102; Ontario v. Koomson [2011] O.J. No. 5944; and R. v. Valley, 2012 ONCJ 165.

[221] Although the Act does not define the phrase, "material change in circumstances," it was set out in the Board's Policy Guidelines.

[222] Thus, the prosecutor must prove, beyond a reasonable doubt, that the defendant not only failed to report a material change, but that this omission was intentional.

[223] However, I accepted the submissions made by Ms. Rosenberg that it is open to the court to draw inferences when considering the issue of mens rea. See: R. v. Kester (1982), 38 O.R. (2d) 294.

Findings of Fact and Law

[224] I have reviewed all of the 70 exhibits filed in this matter carefully, along with the viva voce evidence of all the witnesses.

[225] Certain issues in this matter were not in dispute. It was clear that the defendant received a crushing blow to his left foot on February 14, 2005. In this workplace accident, a very heavy sprocket fell on his foot, and shattered his bones.

[226] As a result of this workplace injury, the defendant suffered devastating medical and psychological injuries, which have been fully documented. He made a claim for WSIB benefits, and based on his medical information, as of May 30, 2006, the WSIB determined that he could not return to any type of work. He was granted Full LOE, plus a Non-Economic Loss Award, for his functional impairment. The WSIB also determined that it would not offer him Labour Market Re-entry, and provided him with full benefits (Exhibit 4).

[227] The WSIB intended to send the defendant a series of automated letters, described in detail in this judgment, in paragraphs 13-17. While section 81 of the POA established that ignorance of the law was no excuse, the clear purpose of these automated letters was to put the defendant on notice of the WSIB's policy, based on the Act, which required him to report any material changes, or face a loss of benefits and possible serious sanctions.

[228] However, it was clear that the WSIB did not retain hard copies of the material change letters that it may have sent to this defendant. Moreover, the WSIB's automated system of record keeping appeared flawed, and I am not persuaded that certain key exhibits and critical dates corresponded to one another. I have taken considerable time inspecting exhibits carefully, and have found the evidence with respect to the material change letters intended to have been sent to the defendant to be quite wanting. Thus, I am not persuaded, beyond a reasonable doubt, that this defendant received most of these material change letters and attachments, which included summaries of the WSIB's policies on what constituted a material change in circumstances. The one exception to this critical lack of evidence was the WSIB's letter, dated May 30, 2006 (Exhibit 44), which was addressed to him personally, and included a warning that he had to disclose any material changes. As a finding of fact, only this letter of May 30, 2006 was actually sent to the defendant.

[229] Thus, I find that since it has not been proven that the defendant received the vast majority of these material change warning letters, in order to understand his legal obligations, 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.

[230] Ms. Rizvi candidly testified that she could not recall whether or not she had explicitly discussed the material change issue with him during their telephone calls. Thus, I am not prepared to infer that he was on clear notice of this important issue, based on receipt of only one letter.

[231] I cite, with approval, His Worship Zuliani's analysis of this issue, in his judgment, R. v. Valley, 2012 ONCJ 165, at paragraph 33, where he held:

In assessing the evidence before the court, the court is left to wonder if these charges are more form than substance. The WSIB as stated in its internal policy manual directs that if a person fails to inform the WSIB as required the person is presumed to have done so intentionally. The court is perplexed that there is no evidence of a communication strategy in place to ensure a common understanding of terms and conditions (professional jargon) is understood by the general public. Rather the position is taken by the WSIB it is the public's responsibility to become familiar with the meaning of the jargon. They point to the fact that although they do not provide the internal policy manual to the general public it is available on line. WSIB employees who testified were not able to articulate a common understanding of what constituted a material change as it relates to benefits. It is not reasonable to expect all members of the general public to have access to the manual on line or even if accessible that there would be a common understanding of the jargon used.

[232] I accepted the evidence of the defendant, corroborated by Ms. Armstrong's testimony, that the defendant appeared to have responded to the WSIB's requests for information about his medical condition, his loss of earnings and that he completed and returned his Earnings Questionnaire, see: Exhibits 9, 10, 12, 16 and 17. I also accepted, as true, that the defendant did advise the WSIB that he was trying to drive again with his left leg and cruise control, which was borne out in Exhibit 25, which was Ms. Rizvi's memo to file, based on her telephone conversation with him of August 17, 2011.

[233] The surveillance put on the defendant was ordered within the WSIB, because of the suspicion of the WSIB's medical adviser that the defendant did not refill his prescription painkillers with sufficient frequency. It was clear from the defendant's testimony that these painkillers had caused him serious constipation. His constipation had resulted in medical issues with his rectum. As a result, he had been drinking prune juice and reducing the number of painkillers he used.

[234] The suspicion of the WSIB's medical adviser was in contradiction to the outcome of the M-FAST assessment, done by CAMH in its report dated August 30, 2011(Exhibit 37), at the request of the WSIB, which found that the likelihood of his malingering was low. At that time, CAMH found his knowledge of English limited.

[235] I was also satisfied that it has been proven in this trial that Mr. Kathirkamapillai was treated at a hospital after a suicide attempt, see: Exhibit 39, corroborated by Exhibit 64, a report from St. Joseph's Health Centre, dated August 25, 2008, and by the testimony of the defendant and his wife. Given that this was a mens rea offence, his well-documented depression and suicidal ideation were mitigating factors in assessing his overall capacity to withhold material information from the WSIB in an intentional fashion.

[236] While the surveillance videos taken in December 2011 did show the defendant travelling lengthy distances, attending once at a Costco store with his wife to shop, and refilling propane tanks, which he did not lift, I have accepted the testimony of his daughter that they had been advised by the WSIB's nurse who visited the home to encourage him to leave the house more and to do more for himself, in order to combat his depression.

[237] The defendant advised the WSIB that he had been leaving the house in order to take short walks with his family, or go to the bank. He also advised the WSIB that he had been trying to drive. Thus, I did not find the trip to Costco or the purchase of propane tanks to be a material change that he deliberately and intentionally failed to report. In making this finding, I concur with the reasoning of His Worship Bubrin, in R. v. Duque, 2013 ONCJ 648, who held at p. 21:

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 a brief and limited episodes of surveillance. 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.

[238] What was more troubling, however, was the surveillance videos also depicted the defendant making what appeared to be deliveries to small shops, while carrying styro-foam trays, and travelling significant distances by car. Nevertheless, the investigators hired by the WSIB were unable to prove that he was paid for these deliveries. In contrast, his daughter said that they were only doing a favour for a family friend, and that she had made many of these deliveries herself. Throughout the videos, the defendant was moving slowly and was using his crutch. In many of these scenes, the defendant was merely a consumer, running some errands. In assessing credibility, I rely on the second part of the test in R. v. W.(D.) 1991, [1991] 1 S.C.R. 742, and find that while I did not believe all of the evidence of Mr. Kathirkamapillai, nevertheless, I have been left in reasonable doubt by it.

[239] I found it very telling that the defendant's family doctor advised the MTO to revoke his Ontario driver's licence, which occurred on June 19, 2012 (Exhibit 53). Given the defendant's testimony at this trial, that his efforts to drive were made with the use of his other foot and cruise control, I find that when his doctor was made aware of this situation, he made the responsible, but difficult, decision to advise the Ministry that his patient should no longer be driving.

Order

[240] Based on the totality of the evidence before me, the mens rea element of this offence has not been proven beyond a reasonable doubt and the matter is therefore dismissed.

Dated at Toronto, this 20th day of May, 2014.

Mary A. Ross Hendriks, J.P.