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WORKERS' COMPENSATION - Benefits - Failure to inform of material change

Friday, June 22, 2018 @ 8:44 AM  


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Consolidated appeals by Curtis, Kathirkamapillai and Koomson from convictions for an offence under s. 149(2) of the Workplace Safety and Insurance Act. The Workplace Safety and Insurance Board administered no-fault insurance, provided compensation to injured workers, and facilitated returning to work. Upon a report of an injury or illness, the Board gathered information, weighed evidence, determined whether the injury or illness was work-related, and determined entitlement to compensation. Under s. 149(2) of the Act, it was an offence for an injured worker to fail to inform the Board of a material change in connection with his or her entitlement to benefits. Conflicting jurisprudence developed on the issue of the mental element required to sustain a s. 149(2) offence. The appellants each suffered significant and permanent workplace injuries, and were the subject of proceedings for a s. 149(2) offence. The Board took the position that any subjective awareness of a change and an intentional failure to report such change was sufficient to sustain a conviction, even where such change would not reduce the worker's entitlement to benefits. The appellants submitted that the Crown was required to prove that a worker who failed to report a change knew they were likely to receive benefits to which they were not entitled.

HELD: Appeals allowed. The use of the word "wilfully" in s. 149(2) signified an intention to create a true criminal offence that required mens rea of intention in relation to achievement of a purpose. The linkage between a material change and entitlement to benefits within the provision suggested a consequence related to the change, namely receipt of benefits to which a worker was no longer entitled. A minimal mens rea requirement was not necessary to advance the objectives of the legislative regime. The Crown was required to prove that a worker knew of a material change in his or her health, income or employment status that could affect entitlement to benefits, and that they intended not to inform the Board of that change with the knowledge or substantial certainty they would receive benefits to which they were not entitled. In the case of Kathirkamapillai, an acquittal was restored. In the cases of Koomson and Curtis, the matters were remitted for new trials if the Crown chose to proceed.

Curtis v. Ontario (Workplace Safety and Insurance Board), [2018] O.J. No. 2483, Ontario Court of Appeal, R.J. Sharpe, G.I. Pardu and J.M. Fairburn JJ.A., May 10, 2018. Digest No. TLD-June112018010