Ontario’s Court of Appeal has issued its decision on three cases that were heard together challenging convictions of injured workers for failing to report a material change of circumstances (Workplace Safety and Insurance Board v. Curtis, 2018 ONCA 441 (CanLII). Injured Workers’ Consultants community legal clinic (IWC) provided an affidavit in two cases with some background and context. The issue is the mental intent necessary for the injured worker to be convicted of the offence.
The WSIB took the position that the act 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 argued that awareness and intentional failure to report the change is sufficient to establish the mental element for the offence; that it is not necessary for the injured worker to have any foresight or intention regarding the effect on benefits. Or for there to be any effect on benefits at all. For example, the Board argued 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.
The injured workers’ lawyers argued that the prosecution must prove that the accused knew that a material change in his or her circumstances has occurred, intended not to inform the WSIB of the change, and foresaw 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.
Court of Appeal agreed with the position of the injured workers
The three judges looked at the statements made by the government when they introduced the offence into the workers’ compensation legislation. This was Bill 15 in 1995, the first of several bills introduced by the conservative Harris government to restrict workers’ compensation benefits. Statements in Hansard by government representative John Baird reflect the bias of that government against injured workers, railing about “the tools [that the Board] needs to go after all forms of fraud” and injured workers “stealing money from the WCB.”
The judges also noted that “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.”
The judges concluded that “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.”
The intent behind “material change” law & policy?
This will hopefully bring an end to the criminalization of injured workers’ recovery from injury. Together with the injured worker movement, IWC made that point at the Standing Committee hearings in 1995 [submission] and we continued to raise it to date when the opportunity arose. The Harris government took the position that the workers’ compensation system was too generous with benefits and rife with injured worker fraud. Bill 15 with “material change” was the first of several bills passed to restrict workers’ compensation. In our submission IWC said “This is the first amendment ever introduced to workers’ compensation without an explanation. Is the onus placed on us to explain what the government means? Could it mean a change in the injured worker’s condition i.e. it gets worse because of age? We are not sure this is what the government has in mind.”
We asked whether injured workers must report changes in employment status? If a pensioner under the pre-1990 system changes employment, it does not affect the pension. Could it be for workers injured since 1990 with a FEL benefit? Changes in employment or earnings, up or down, are irrelevant until the scheduled review is held. The submission concluded “We do not know what possible benefit this change will bring, other than to introduce a new level of complexity, anxiety and bureaucracy in a system already overburdened with these.”
For 23 years now many injured workers have been accused of fraud and criminalized for their efforts to recover from their injuries. They have defended themselves in court, lobbied MPPs for legislative change and pressed the WSIB senior management for changes in policy around the prosecution of injured worker. Last year, the injured worker movement finally reversed the restriction on compensation for mental stress introduced by the conservative government in Bill 99 in 1996. This year, injured workers have stopped the WSIB’s criminalization of recovery from injury that began in 1995.
It is astounding how many years and on how many battlefronts the injured worker movement must fight an injustice before changes are made. Its an incredible tribute to injured workers and their supporters that they continue to fight for justice.