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WSIB fraud requires a wilful act, like tax evasion, appeal court decides

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The WSIB must prove that a worker intended to obtain WSIB benefits to which he or she was not entitled, when it charges a worker with “wilfully failing to inform the Board of a material change”, the Ontario Court of Appeal has decided.

The WSIB prosecuted three workers, who were receiving WSIB benefits, for failing to report a “material change” with respect to their entitlement to WSIB benefits.  The WSIB argued that it was not required to prove that the workers intended to defraud the WSIB.  The appeal court disagreed.  It 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.  The court said that the WSIB must prove the following:

1. 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;

2. The accused intended not to inform the WSIB of that change; and

3.The accused:

a.  intended by the failure to inform, to receive benefits to which he or she was not entitled, or

b.  foresaw that the failure to inform was substantially certain to result in the receipt of benefits to which he or she was not entitled.

With respect to one of the three workers, whose first language was not English and who may not have understood his obligations, the appeal court held that the prosecutor had not proven the necessary intent.  As such, 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.  

The decision is somewhat of a setback for the WSIB in prosecuting workers for “WSIB fraud”, as it will often be difficult for the WSIB to prove that a worker intended not to inform the WSIB of a material change and intended to receive benefits to which he or she was not entitled.

Workplace Safety and Insurance Board v. Curtis, 2018 ONCA 441 (CanLII)