Ontario Court of Appeal decision about failure to report a material change

May 18, 2018

The WSIB will often use surveillance and charges against injured workers for "failing to report a material change in circumstances" as a way to reduce benefits.   Yes, there are cases where video surveillance reveals that a worker who claimed to be unable to work, is in fact working.  But more often the surveillance reveals, perhaps, a greater level of activity than has sometimes been reported, but no outright fraud.  It is not clear even to experienced representatives what is material in many of these cases, yet stil the WSIB has been using the criminal process to intimidate injured workers.

The recent Ontario Court of Appeal decision in Workplace Safety and Insurance Board v. Curtis may put the brakes to this overzealous use of prosecution by the WSIB.  The decision requires the prosecution to show that the worker had the requisite intent- that the worker wilfully failed to inform the WSIB of a change, and the worker knew or foresaw that this failure would lead to the payment of benefits to which the worker was not entitled. 

Injured workers who face charges should receive a vigorous defence.  The amount at stake in lost benefits may be much more than any fine that may be levied.  The Curtis decision gives defence counsel an important weapon at their disposal.