



COURT OF APPEAL FOR ONTARIO

CITATION: Workplace Safety and Insurance Board v. Curtis,
    2018 ONCA 441

DATE: 20180510

DOCKET: C62726, C63549 & C63555

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen (Workplace Safety and
    Insurance Board)

Respondent

and

David Curtis, Selvamenan Kathirkamapillai and
    Douglas Koomson

Appellants

David Shulman, for Selvamenan Kathirkamapillai

Andrew Bigioni, for Douglas Koomson

David Curtis and Mark Wiffen,
amicus
for David
    Curtis

Rob Boswell and Jeffrey Clarke, for the respondent

Heard: March 22, 2018

On appeal from the judgment of Justice Marvin A. Zuker of
    the Ontario Court of Justice, delivered May 5, 2015, overturning the acquittal
    entered by Her Worship Mary A. Ross Hendriks of the Ontario Court of Justice,
    dated May 20, 2014 (Kathirkamapillai).

On appeal from the judgment of Justice Richard H.K.
    Schwarzl of the Ontario Court of Justice, dated February 19, 2016, upholding
    the conviction imposed by His Worship Richard Quon of the Ontario Court of
    Justice, dated December 6, 2011 (Koomson).

On appeal from the judgment of Justice George S. Gage of
    the Ontario Court of Justice, delivered February 27, 2016, upholding the
    conviction imposed by His Worship Mitchell H. Baker of the Ontario Court of
    Justice, delivered February 21, 2014 (Curtis).

Pardu
    J.A.:

[1]

These three appeals have been heard together
    with a view to clarifying the conflicting jurisprudence about the
mens
    rea
, the mental element required to sustain a conviction
    for an offence under s. 149(2) of the
Workplace Safety and Insurance
    Act,

1997, S.O. 1997, c. 16 Sched. A (WSIA). That
    subsection makes it an offence for an injured worker to fail to inform the Workplace
    Safety and Insurance Board (WSIB or Board) of a material change in
    circumstances in connection with his or her entitlement to benefits.

Statutory Context

[2]

The WSIB is an independent agency established under the
    WSIA. It administers a plan of no-fault insurance for Ontario workplaces. Its
    statutory mandate includes promotion of workplace health and safety, helping
    injured workers return to work, and provision of compensation and other
    benefits for injured workers and workers afflicted with occupational diseases. It
    also provides
access to industry specific information about workplace
    fatalities, injuries and illnesses.

[3]

Both employers and employees can report an
    injury or illness to the WSIB. It then decides whether the injury or illness is
    work-related, gathers relevant information, weighs evidence, and makes a
    decision in respect of a claimants entitlement. Although decisions of the WSIB
    are meant to be final, both the employer and employee have a right to appeal a
    decision made in a respect of a claim. Decisions may be appealed to the
    Workplace Safety and Insurance Appeals Tribunal (WSIAT) after the WSIBs
    internal appeal mechanism has been exhausted.

[4]

A claimant has no right of appeal from a
    decision of the WSIAT. Any further appeal must be made by application for
    judicial review.

[5]

Section 149(2) of the WSIA provides that a
    person who wilfully fails to inform the Board of a material change of
    circumstances in connection with his or her entitlement to benefits is guilty
    of an offence.

Positions of the parties

[6]

The WSIB takes the position that the
actus
    reus
of the offence is established when an injured worker
    experiences a significant change in his or her health, income or employment
    status and fails to report that change to the Board. It submits that subjective
    awareness and intentional failure to report that there has been such a
    significant change is sufficient to establish the mental element for the
    offence, and that no aspect of the mental element requires any foresight or
    intention in relation to entitlement to benefits. Thus, for example, the Board
    argues that a worker who has suffered a traumatic head injury and is disabled
    by twice weekly migraine headaches would commit an offence if the worker failed
    to report any decrease or even increase in frequency of the headaches to the
    Board, even though that change would not reduce any of the benefits to which
    the worker was entitled.

[7]

The appellants, on the other hand, submit that
    the prosecution must prove that the accused knew that a material change in his
    or her circumstances has occurred, intends not to inform the WSIB of the
    change, and foresees that by the failure to inform the WSIB, he or she is
    certain or substantially certain to receive benefits to which he or she is not
    entitled.

Analysis

Statutory language

[8]

I begin my analysis with the language of the
    section:

149(2) A
    person who wilfully fails to inform the Board of a material change in
    circumstances in connection with his or her entitlement to benefits within 10
    days after the change occurs is guilty of an offence.

[9]

Section 158 provides that a person who commits
    the offence is liable to a fine up to $25,000 or to imprisonment for up to six
    months, or to both.

[10]

The use of the word wilfully in the statutory
    text is important and signifies a legislative intention to create a true
    criminal offence 
in which
mens rea,
consisting of some positive state of mind such as intent, knowledge, or
    recklessness, must be proved by the prosecution either as an inference from the
    nature of the act committed, or by additional evidence
:
R. v. Sault Ste. Marie
,
[1978] 2 S.C.R. 1299 at para. 60. The term wilfully is a term of
    art usually used to express a
mens rea
requirement that stresses intention in relation to the achievement of a
    purpose:
R. v. Docherty
, [1989] 2 S.C.R. 941
    at para. 13.

[11]

That interpretation is supported by the use of
    in connection with his or her entitlement to benefits to define the scope of
    a material change. The use of this phrase suggests a consequence flowing from
    the change, in this context, receipt of benefits under the WSIA to which a
    worker is no longer entitled.

Legislative purpose

[12]

This interpretation is also supported by
    Legislative Debates describing this and other provisions as intended to combat
    fraud, that is to say, workers receipt of benefits to which they are not
    entitled.

[13]

When the Bill creating this offence was
    introduced, the Minister of Labour indicated:

[T]his
    board faces fraud and other abuses of the system by employers, by suppliers, by
    workers and by others.The amendments also include measures to stem the loss of
    revenue owed to the WCB, strengthen anti-fraud measures and eliminate abuses of
    the system.The amendments will make it an offence under the act to obtain
    benefits or to receive compensation by deliberately providing false or
    misleading information.

Ontario,
    Legislative Assembly,
Official Report of Debates (Hansard)
, 36th Parl.,
    1st Sess., (14 November 1995), at 1540 and 1550 (Hon. Elizabeth Witmer).

[14]

The amendments were referred to the Standing
    Committee on Resources Development for consideration. In introducing the
    proposed amendments to the Committee, the Honourable John R. Baird, standing-in
    for the Minister of Labour, discussed the new offences and penalties section.
    He referred specifically to the new provisions which placed positive
    obligations on workers and employers to report to the board when there are
    changes in circumstances that, in the case of workers, affect their rights to
    benefits. He described the Bill as the tools [that the Board] needs to go
    after all forms of fraud. He referred to failing to report a change in
    circumstance as stealing money from the WCB. The amendments proceeded
    unchanged to third reading and the Bill received Royal Assent on December 14,
    1995: see Ontario, Legislative Assembly,
Standing Committee of
    Resources Development, Consideration of Bill 15
, 36th
    Parl., 1st Sess., (27 November 1995 and 11 December 1995) (Mr. John R. Baird).

Factual context

[15]

Injured workers are a vulnerable group. Some,
    like Mr. Kathirkamapillai, may suffer traumatic stress injuries and lasting
    mental illness such as depression. Others, like Mr. Koomson, may suffer
    traumatic head injuries which leave them with permanent cognitive impairment. Others,
    like Mr. Curtis, may suffer bodily injury that results in chronic pain and
    reduced mobility. Understanding whether a change in symptoms is or is not
    material in relation to entitlement to benefits may require medical expertise,
    and an understanding of the basis upon which benefits have been provided which
    is not always apparent to an injured worker. Some injured workers may have
    language difficulties.

[16]

In this context, where the offence is committed
    as a result of a failure to act, conviction should not follow unless the Crown
    proves either that the worker failed to report a material change with the
    intention that he or she receive benefits to which he or she is not entitled, or
    subjectively knew that such a result is substantially certain to follow.

[17]

I am not convinced by the WSIB argument that a
    minimal
mens rea
requirement is necessary to
    advance the objectives of the legislative regime. The WSIB has all the powers
    necessary to declare that overpayments have been made and to recover benefit-related
    debt resulting from a failure to report a material change in circumstance.

[18]

This offence is analogous to the offence of tax
    evasion, described in
R. v. Klundert
(2004),
242
    D.L.R. (4th) 644 (C.A.)
. As here, tax evasion is defined as a
    wilful act; the wilful evasion of the payment of taxes imposed by the
Income
    Tax

Act,
R.S.C. 1985, c. 1 (5th Supp.)
and akin
    to fraud. As here, the statutory regime calls for self-reporting of income so
    that tax liability can be established. As here, the regime is necessarily and
    notoriously complex where no lay person could be expected to know all of the
    complexities of the tax laws:
Klundert,
at
    para. 55. A search of Canlii shows that the WSIAT rendered some 75,486
    decisions between January 1, 1986 and April 13, 2018. As here, tax evasion may
    be committed by a failure to act (a failure to report income) and there is a
    statutory regime for the recovery of money which should have been paid.

[19]

Under similar circumstances, Doherty J.A.
    concluded at para. 47 of
Klundert,
that proof
    of tax evasion required proof that an accused:

·

did something or engaged in a course of conduct
    that avoided or attempted to avoid the payment of tax imposed by the Act;

·

knew there was tax imposed by the Act; and

·

engaged in the conduct for the purpose of
    avoiding or attempting to avoid payment of tax imposed by the Act or knowing
    that avoiding payment of tax imposed by the Act was a virtual certain
    consequence of his actions. [Citation omitted.]

[20]

This analysis is applicable to the language of s.
    149(2), the legislative purpose, and the context of this offence. I agree that
    in order to obtain a conviction under s. 149(2) of the WSIA, the prosecution
    must prove the following:

1.

The accused knew that a material change in his or
    her health, income, employment status or other circumstance had occurred.
    Material change means a change that could affect his or her entitlement to
    benefits paid by the WSIB;

2.

The accused intended not to inform the WSIB of
    that change; and

3.

The accused:

a.

intended by the failure to inform, to receive
    benefits to which he or she was not entitled, or

b.

foresaw that the failure to inform was
    substantially certain to result in the receipt of benefits to which he or she
    was not entitled.

[21]

In many cases the inference of the requisite
    mental state will readily follow. Where an accused who is receiving full income
    replacement benefits is discovered earning full-time income under the table,
    the inference that he or she intended by failing to inform the Board of this
    change to receive benefits to which he or she is not entitled is easily drawn.

[22]

As
    in
Klundert
, however, the requisite
mens rea
to sustain a
    conviction under s. 149(2) may be negated by a mistaken belief. That mistaken
    belief may be based on a mistake of fact, a misunderstanding of the law or a
    combination of both. The guilty knowledge necessary to sustain a
    conviction will be imputed to an accused who is wilfully blind, that is to say,
    knows that there had been a material change likely to affect his or her entitlement
    to benefits but deliberately chooses not to make the inquiries which would fix
    him or her with knowledge, so that he or she can deny knowledge:
R. v.
    Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 21 and 23.

Individual appeals

[23]

I turn now to a consideration of the individual
    appeals.

[24]

There is no dispute that identification of the
    correct
mens rea
to support conviction under
    s. 149(2) of the WSIA is reviewed on a standard of correctness.

Selvamenan Kathirkamapillai

[25]

On February 14, 2005 a heavy metal sprocket landed
    on Mr. Kathirkamapillais foot, shattering the bones. He was confined to a
    wheelchair for two years. The physical injuries triggered a post-traumatic
    stress disorder recognized as a permanent impairment. He suffered from physical
    pain, and difficulty walking. Mr. Kathirkamapillai was granted full loss of earnings
    benefits by the WSIB, on the basis that he could not return to any kind of
    work.

[26]

On October 10, 2006 the Toronto Western Hospital
    WSIB Foot and Ankle Specialty Program recommended the following permanent
    precautions for Mr. Kathirkamapillai:

·

Sedentary duties with no load handling

·

Standing on a rarely basis

·

Walking on a rarely basis

·

No low level work

·

No repetitive squatting

·

No ladder climbing

·

Stair climbing on a rarely basis

·

Continued regular psychological counselling with
    Dr. Smith, at Dr. Smiths discretion

·

Follow-up with Dr. J. Lau if he wishes to
    consider surgical options discussed previously i.e. below knee amputation.

[27]

There was no recommendation that he not drive.

[28]

In May 2011, the appellant told a case manager
    he could not walk for more than 100 meters or sit for long. In July 2011, the
    appellant advised a medical consultant that he was on numerous and very
    sedating medications. In August 2011, the appellant told the case manager on
    the telephone that he did not drive. On another occasion he said he used his
    left leg to brake and used cruise control to drive but did not feel safe
    driving. He indicated that he went out sometimes to go grocery shopping, for
    banking and to walk short distances. An assessment of his mental health
    performed at CAMH confirmed the continuing presence of serious psychiatric
    problems.

[29]

The appellants first language was not English. There
    was no indication anyone had ever explained the obligation to report material
    changes to the Board in any fashion that the appellant could understand.

[30]

The Board conducted surveillance of the
    appellant over a five day period in December 2011. He was observed standing
    beside his vehicle with a crutch; carrying a box in one hand while using the
    crutch; pushing a small grocery cart and unloading it one bag at a time; kneeling
    to pump air into a tire; kneeling to pray; and picking a propane tank up off
    the ground for a few seconds. On a trip to Costco with his wife, his wife
    carried the purchases back to the vehicle. The appellant also made trips alone
    in his car to small bakeries and grocery stores.

[31]

The appellants daughter testified that she
    delivered boxes to restaurants to help out a relative. This was unpaid work. She
    tried to encourage her father to do this on a few occasions to find out what
    his limitations were. A nurse with the WSIB had encouraged her to try and get
    her father out of the house. He tried it a few times, but found it beyond him.

Trial judgment

[32]

The justice of the peace found that s. 149(2)
    created a 
mens rea
offence, and that the
    prosecution had to prove beyond a reasonable doubt that the defendant not only
    failed to report a material change, but that the omission was intentional. Reading
    the reasons as a whole, it appears that she was not convinced that the
    activities observed during surveillance were inconsistent with an inability to
    return to any kind of work. She was not persuaded that the appellant understood
    that he had to report a material change in his condition, indicating at para.
    229 that:

[I]n order to understand this legal
    obligation, he would have been forced to navigate the WSIBs 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
    WSIBs website, while suffering from devastating injuries, and with limited
    command of the English language. There was no evidence before me that the defendant
    had a personal computer or any knowledge of how to use one.

[33]

In the end, the justice of the peace concluded
    that the prosecution had not proven the
mens rea
of the offence and acquitted the appellant.

Appeal judgment

[34]

The appeal judge overturned the acquittal and
    ordered a new trial. It is difficult to discern what test he applied to the
    determination of the
mens rea

required for
    this offence. He seems to suggest that the appellant was guilty because he
    drove consciously or was wilfully blind to the existence of circumstances
    constituting a blameworthy state of mind. He concluded that criminal
    responsibility is linked with the conduct element of the external circumstances
    of the offence. Criminal responsibility is conduct based.

Remedy

[35]

According to the factual findings made by the justice
    of the peace, the prosecution has not proven that the appellant had the
mens
    rea
required to sustain a conviction under s. 149(2), and
    the acquittal is restored.

Douglas Koomson

[36]

On May 17, 2007 the appellant fell from a
    workplace scaffolding and struck his head. He sustained severe head trauma that
    resulted in intracranial bleeding. He was diagnosed by a psychiatrist at the
    Toronto Rehabilitation Institute with a moderately severe, traumatic brain
    injury. He remained in hospital for three weeks following the accident. Medical
    professionals determined that he had sustained permanent cognitive impairment
    from the fall.

[37]

From the time of the appellants accident
    onwards, numerous medical reports and assessments were sent to the WSIB. They
    reported that the appellant experienced ongoing issues including memory
    difficulties, decreased attention, headaches, lower back pain, decreased
    activity tolerance, right-side neck and shoulder pain, loss of interest,
    difficulty processing information, poor decision making, word-finding
    difficulties, poor organizational skills, poor pragmatic language functioning,
    poor reading comprehension and sleep difficulties.

[38]

After a neuropsychological assessment, the
    appellant was told he should not drive. The Ministry of Transportation was told
    of the appellants medical condition and suspended his drivers license for
    medical reasons shortly after the accident.

[39]

The WSIB accepted the appellants diagnosis of a
    head/brain injury with persistent cognitive deficit. Based on its assessment of
    the appellants medical reports, the WSIB determined that he was eligible for
    compensatory benefits, namely: full loss of earnings benefits, personal care
    allowance, independent living allowance and medication and healthcare benefits.

[40]

The WSIB found that the appellant required
    constant supervision by a caregiver. It paid the appellant a personal care allowance
    for this purpose. The reason the WSIB paid these benefits to the appellant was
    because of its belief that he lacked the capacity to respond independently to
    an emergency situation. However, it believed the appellant required no
    assistance in other aspects of daily living such as bathing, exercising,
    administering medication, hygiene, dressing and undressing, and doing laundry.

[41]

The WSIB knew that the appellant performed well
    at the gym, could play board games and communicate with others. It knew that he
    was independent with grocery shopping and preparing a full meal with no safety
    or cognitive issues identified.

[42]

The WSIB surveillance showed that the appellant
    drove by himself; he went into stores independently; he was able to lift, twist
    and bend; he lifted a heavy item; he performed weighted abdominal exercises; he
    conducted apparent business transactions; and he had a long discussion with
    someone while by himself.

[43]

The appellants driving was arguably
    inconsistent with information previously provided to the Board. The appellant
    had a rehabilitation support worker to teach him how to use public transit.

[44]

The appellant had been advised that the personal
    care allowance provided to him was for general supervision. It is not clear
    that the appellant understood the connection between the different benefits he
    was receiving and why they were being provided. It follows that it is equally
    unclear that the appellant knew he would receive benefits to which he was not
    entitled if he did not report that he was driving.

Trial judgment

[45]

The justice of the peace convicted the
    appellant, concluding at para. 137:

[I]f the
    defendant was not in an unconscious or dissociative state  then it can be
    inferred that the acts or omissions done by the defendant were willed or
    voluntary.

[46]

In concluding that the Crown had satisfied the
mens
    rea
requirement, the justice of the peace held that,
    because the appellant did not inform the WSIB about the material change at all,
    his failure to inform was therefore intentional and wilful.

Appeal judgment

[47]

The appeal judge dismissed the appeal on the
    ground that the justice of the peace had correctly identified the
mens
    rea
for the offence, and on the ground that his conclusions
    were reasonable.

Remedy

[48]

The respondent concedes that the justice of the
    peace and the appeal judge erred by concluding that if an individual was not in
    an unconscious or impaired (dissociative) state when he or she failed to
    report a material change in circumstances, it could be inferred that his or her
    acts or omissions were willed or voluntary.

[49]

The factual findings made by the justice of the
    peace are not sufficient to enable this court to conclude whether the requisite
mens rea
was proven. The conviction, and the
    appeal judgment upholding the conviction are set aside. A new trial is required.

David Curtis

[50]

On December 3, 2007 a snow plow struck a raised manhole
    cover throwing the driver, Mr. Curtis, against the steering wheel. He suffered
    a back injury that resulted in chronic pain and reduced mobility. The WSIB
    granted Mr. Curtis benefits due to his injury. Between January 2008 and August
    2011, Mr. Curtis filed various reports outlining his physical abilities and
    impairments as a result of the injury:

·

Workers progress reports indicated that his
    travel ability ranged from no ability to travel to ability to travel for 45
    minutes;

·

Functional abilities forms indicated that Mr.
    Curtis could sit for up to 30 minutes and lift up to 5 kilograms;

·

A clinical assessment indicated that Mr. Curtis
    should avoid moderate to heavy lifting as well as industrialized motor
    vehicles; and

·

Physiotherapist reports indicated that Mr.
    Curtis could not stand or sit for more than one hour and that he was unable to
    lift, bend or twist.

[51]

The Board investigated Mr. Curtis and found that
    he was engaged in the following activities between February 2008 and October
    2010:

·

Driving for 25 to 30 minutes;

·

Picking up and laying interlocking bricks;

·

Laying patio stones; and

·

Climbing/shingling his roof.

Trial judgment

[52]

The justice of the peace found that there was a material
    change and that Mr. Curtis failed to report it to the WSIB. Mr. Curtis was
    convicted on this basis. The justice of the peace found that the activities
    alleged to have been carried out by Mr. Curtis far exceed the abilities or
    restrictions recommended for Mr. Curtis and reported by Mr. Curtis and that he
    must have had some improvement in his condition in order to perform those
    activities. On the other hand, the justice of the peace accepted that the
    appellant suffered from chronic pain, reduced mobility and agility and
    diminished quality of life and that his level of disability would not allow him
    to return to any form of employment.

Appeal judgment

[53]

The appeal judge concluded that the reasons
    provided by the justice of the peace were sustainable on the evidence and
    accordingly, the appeal was dismissed.

Remedy

[54]

Neither the justice of the peace nor the appeal
    judge identified the
mens rea
required for the
    offence. In the absence of any findings on that issue, a new trial is required.

Conclusion

[55]

Accordingly, I would allow the appeal by Mr.
    Kathirkamapillai and restore the acquittal, and allow the appeals by Mr.
    Koomson and Mr. Curtis and remit both matters for a new trial, if demanded by
    the prosecution.

G.
    Pardu J.A.

I
    agree Robert J. Sharpe J.A.

I
    agree Fairburn J.A.

Released: May 10, 2018


