In Workplace Safety and Insurance Board v. Curtis, 2018 ONCA 441, the Court of Appeal clarified the mens rea of the offence of failing to report a material change in connection with benefit entitlement. The Court held that the prosecution must prove an intention of the worker to receive benefits to which he or she would not otherwise be entitled. It is not enough that the worker’s situation materially changed and the worker did not report this change.
Statutory Provisions Governing the Offence of Failure to Report a Material Change
In this case, the WSIB prosecuted the accused injured workers under s. 149(2) of the Workplace Safety and Insurance Act, S.O. 1997, c. 16, Sched. A (WSIA). Section 149(2) provides that:
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.
Arguments before the Court of Appeal
The appellants, the accused injured workers, argued that the prosecution must prove beyond a reasonable doubt that the accused foresaw that he or she was certain or substantially certain to receive benefits to which he or she was not entitled as a result of the failure to report the material change.
By contrast, the WSIB argued in response that the prosecution only has to prove that a material change occurred and the worker didn’t report it. In other words, the law did not require any intention or forethought about benefit consequences.