According to the Ontario Court of Appeal, when the Workplace Safety and Insurance Board (WSIB) charges a worker for “wilfully failing to inform the Board of a material change,” the WSIB must prove a wilful act, and, moreover, that a worker intended to obtain WSIB benefits to which he or she is not entitled to.
Section 149(2) of the Workplace Safety and Insurance Act (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. Section 158 of the WSIA provides that a person who commits this offence is subject to a fine up to $25,000 or to imprisonment for up to six months, or to both.
However, what must be proven to substantiate such a claim?
This case dealt with three appeals of workers receiving WSIB benefits who were prosecuted for failing to report a “material change” with respect to their entitlement to WSIB benefits.
The WSIB argued that that it was not required to demonstrate that the workers intended to defraud the WSIB. More specifically,
 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.
On the other hand, the appellants (three workers) 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.”
The appeal court disagreed with the WSIB and held that in order to obtain a conviction for failing to report a material change, the prosecutor must prove something akin to tax evasion or fraud. It stated,
 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” [emphasis added by the author]
Moreover, the court stated that the WSIB must prove the following:
- That 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;
- That the accused intended to not inform the WSIB of that change; and
- That the accused:
- Intended, by the failure to inform, to receive benefits to which he or she was not entitled, or
- foresaw that the failure to inform was substantially certain to result in the receipt of benefits to which he or she was not entitled.
Of the three workers, one’s first language was not English. He may not have understood his obligations under the law; therefore, necessary intent could not be and was not proven. As a result, his charge was dismissed.
The other two workers, who were found guilty at trial, were awarded a new trial, as the trial justice’s decision did not contain sufficient detail to permit the court to determine whether the workers had the necessary intent to receive WSIB benefits to which they were not entitled.