Ontario (Workplace Safety and Insurance Board) v. Ramgobin, 2014 ONCJ 256

Citation: Ontario (Workplace Safety and Insurance Board) v. Ramgobin , 2014 ONCJ 256 Ontario Court of Justice Toronto Region Case Name: ONTARIO (WORKPLACE SAFETY AND INSURANCE BOARD) V. RAMGOBIN IN THE MATTER OF THE WORKPLACE SAFETY AND INSURANCE ACT, 1997, S.O. 1997, c. 16, Sched. A Between Her Majesty the Queen in Right of Ontario (Workplace Safety and Insurance Board), Prosecutor, and Kumar Ramgobin, Defendant REASONS FOR JUDGMENT Before: His Worship Mohammed Brihmi Appearances: Ms. Rebecca Rosenberg, WSIB Prosecutor Mr. Raymond Motee, Counsel for the Defendant Hearing Dates: January 29 and 30, 2014 Judgment: May 21, 2014 M. BRIHMI J.P. (orally):--

INTRODUCTION: [1] The defendant, Kumar Ramgobin, is facing three charges under The Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, asamended (the “Act”). [2] These alleged offences fall under

Part III of the Provincial Offences Act, R.S.O. , c. P. 33 (the “POA”). [3] The defendant, Kumar Ramgobin, has entered a plea of not guilty to each of these charges. THE WITNESSES AND EXHIBITS: [4] The matter before the court is a continuation of the defendant’s trial, which took place over two days, on January 29 and 30th, 2014 atthe Ontario Court of Justice Toronto East (1530 Markham Road).

The Court heard evidence from the Prosecution’s two witnesses: KimKuhlmeyer, short term case Manager with the Workplace Safety and Insurance Board (WSIB or Board), as well as from Lane Patterson,Investigator with Kurt Wruck and Associates, a private investigation firm in Toronto. [5] Furthermore, the Court heard from the defence’s witness, Banmati Ramcharan, the owner of Mystic Restaurant and the employer. [6] In addition to the viva voce testimony, the Court was also provided with 35 exhibits; 34 of them from the Prosecution and one fromthe Defence. [7] After hearing closing arguments from both parties, this matter is before the court today for judgment at Old City Hall in Toronto.

THE CASE LAW: [8] In its analysis of the totality of the evidence which was presented at this trial, the Court carefully reviewed the relevant case law, asfollows:

a) The 1978, Supreme Court of Canada case Regina vs. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299.

b) The 1982, Ontario Court of Appeal case Regina vs. Kester, (ON CA), [1982] O.J. No. 3099.

c) The 1989, Supreme Court of Canada case Regina vs. Docherty, (SCC), [1989] 2 S.C.R. 941.

d) The 1991, Supreme Court of Canada case Regina vs. W.D., (SCC), [1991] 1 S.C.R. 742.

e) The 1993 Supreme Court of Canada case of Regina vs. Theroux, (SCC), [1993] 2 S.C.R. 5 (S.C.

C) f) The 1994, Supreme Court of Canada case Regina vs. Daviault, (SCC), [1994] 3 S.C.R. 63.

g) The 1999 Supreme Court of Canada case Regina vs. Stone, (SCC), [1999] 2 S.C.R. 290.

h) The 2002, Ontario Court of Justice case Regina vs. Virk, [2002] O.J. No. 4102.

i) The 2010 Ontario Court of Appeal case Regina vs. Khawaja, 2010 ONCA 862 , [2010] O.J. No. 5471.

j) The 2010 Ontario Court of Justice case Regina vs. Costoff, [2010] O.J. No. 1261.

k) The 2011 Ontario Court of Justice case Ontario Workplace Safety and Insurance Board v. Koomson, [2011] O.J. No. 5944.

l) The 2012 Ontario Court of Justice case Ontario Workplace Safety and Insurance Board v. Valley, [2012] O.J. No. 1388.

m) The 2013 Ontario Court of Justice case Ontario Workplace Safety and Insurance Board v. Boparai, [2013] ONCJ. No. 303.

THE CHARGES: [ 9 ] The defendant, Kumar Ramgobin, appears before the court charged with committing the following three offences: • that between August 23 rd , 2011 and September 25 th , 2012, at the City of Toronto in the Central Region and elsewhere in the Province of Ontario, did commit the offence of wilfully fail to inform the WSIB of a material change in circumstances in connection with his entitlement to benefits within 10 days after the change occurred, contrary to section 149(2) of the Act ; • that on or about September 9 th , 2011 at the City of Toronto in the Central Region and elsewhere in the Province of Ontario, did knowingly make a false statement or misleading statement or representation to the WSIB in connection with his claim for benefits, contrary to section 149(1) of the Act ; and • That on or about October 17 th , 2011 at the City of Toronto in the Central Region and elsewhere in the Province of Ontario did knowingly make a false or misleading statement or representation to the WSIB in connection with his claim for benefits, contrary to section 149(1) of the Act .

TESTIMONY OF THE PROSECUTION’S WITNESSES : [ 10 ] The Court heard from the Prosecution’s first witness, Kim Kuhlmeyer, WSIB Short-Term Case Manager. Her testimony could be summarized as follows: She has been employed by the WSIB for the past 10 years and she was initially hired at the Board as a Consolidated Adjudicator, looking after claims from the beginning to the end. Among her duties, she makes decisions on entitlement to loss of earning benefits, whether modified work, if offered, is suitable and decisions on health care after consultation with the nurse consultant on the file. [ 11 ] Ms.

Kuhlmeyer told the Court that the Employer Report or Form 7 indicated the date of the accident was on April 25, 2011, and his date of hire was on April 28, 2011; which is three days after the accident. It also indicated that Mr. Ramgobin was taking beers from the storage to refill the refrigerator when he slipped with the beer boxes; hurting his knee, his back and that he was in terrible pain. The address that was given for Mr. Ramgobin was 1255 Birchmount Rd., Unit 212 in Scarborough (Exhibit 3). [ 12 ] Furthermore, Ms.

Kuhlmeyer testified that she received the Health Professional’s report (Form 8) that was completed by Dr. John Oryema, the family doctor, on April 25, 2011 indicating that Mr. Ramgobin twisted his right knee when he slipped and fell at work. He also indicated that he had previous surgery to the right knee and that his home address is 26 Amanda Avenue in Whitby (Exhibit 4). In addition, she received another medical report from Dr. Franklin Tran on April 28, 2011 indicating that Mr. Ramgobin slipped and fell, twisting his right knee and that he had pain and difficulty weight bearing and that he was limping.

Also, it indicated that he had undergone prior surgery by Dr. Bushuk and further surgery by Dr. Cameron. This report also showed that Mr. Ramgobin’s home address is located at 26 Amanda Avenue in Brooklin, Ontario (Exhibit 5). [ 13 ] Ms. Kuhlmeyer testified that she allowed loss of earning for Mr. Ramgobin based on Form 7 and 85% of his earning from working 40 hours per week and earning $700/week. Furthermore, she was expecting to refer his case to a return to work specialist to explore with him and the employer modified work that would not involve a great deal of walking and lifting. However, Ms.

Kuhlmeyer told the court that she had difficulty receiving Mr. Ramgobin’s medical record and that he changed his name from Nankumar Darsan five or six years earlier and had prior knee injuries in 1997 and in 1998. In addition, she told the Court that she called Mr. Ramgobin on May 12, 2011 and that “ He told me he started physiotherapy and when asked him about their phone number he told me that he didn’t start yet and he was going to physiotherapy ”. [ 14 ] Furthermore, Ms.

Kuhlmeyer testified that when she received the progress report from the Chiropractor with a service date of July 6, 2011, it indicated that Mr. Ramgobin had limited flexion of the right knee, he is unable to stand for a long periods and that he is partially disabled. In addition, Mr. Chris Jones, the return to work specialist of the WSIB, met both the employer and the worker on June 16, 2011 and the employer told him no suitable modified duties are available for Mr. Ramgobin at this time. Mr.

Jones also discussed the need for the WSIB to receive the required medical updates information and without it his loss of earning benefits may be affected. Also, he explained to Mr. Ramgobin that the normal healing for this type of injury he sustained is 41 days and that he passed this time.

[ 15 ] Ms. Kuhlmeyer testified that she discovered there was a connection between the defendant and Ms. Ramcharan, the owner and employer. In addition and while checking to see if the defendant had prior claims with the Board with the name she found in one of his medical reports, Nankumar Darsan, she testified that she found some prior claims with that name and in one of the claims she found a prior medical report. [ 16 ] Furthermore, she testified that on July 13, 2011, she received a worker’s progress report signed by Mr. Ramgobin.

It indicated that he had no improvement or change in his condition and that he has not worked for any employer nor was self-employed between the first day off and now. Also, he indicated that he talked to his employer, B. Ramcharan (in brackets it says Shanta) on July 4, 2011 and there was no work that has been offered. In another call with Mr. Ramgobin on October 7, 2011, Ms. Kuhlmeyer testified that he confirmed his name change, that he had a significant prior surgery on the right leg and it was a sport related injury that took place in the early 1980s. [ 17 ] On September 9, 2011, Ms.

Kuhlmeyer sent out another Form 41 in which he indicated that he was getting better. Furthermore, Mr. Ramgobin indicated that he did not work anywhere nor was self-employed between April 25, 2011 and the date of this statement on September 9, 2011. In regard to his current situation, he checked out that he had lost time and had not returned to work and also he indicated that there are no factors preventing him from return to work (Exhibit 23). [ 18 ] Mr. Ramgobin was referred to WSIB knee and hip specialty clinic at Sunnybrook Health Centre; a team led by Dr.

John Cameron for an assessment that took place on August 24, 2011. Dr. Cameron prepared a report about Mr. Ramgobin (Exhibit 24) that could be summarized as follows: • He has a long history of right knee problems and that he operated on him back in 1994 for two damaged ligaments in his right knee, that he had a bone patellar tendon and a tightening of the medial ligament; • He has some right knee pains, occasional instability and some swelling and that the pain was constant and increases with weight bearing, moving his knee, twisting, pivoting or on stairs. Furthermore, Dr. Cameron indicated that Mr.

Ramgobin told them that he was working as a full time manager for Mystic Restaurant over two years and he had commuted to work by car as well as worked 50 to 60 hours a week; • Under his current works status, Mr. Ramgobin reported that he wasn’t working and that he attempted to return to work for one day and that he was not able to cope as well as that there are no suitable modified duties available.

In addition, he was unable to drive to and from work and unable to perform any productive work due to poor symptom control; • His restrictions from this assessment are: No heavy lifting, carrying, pushing or pulling and avoid stairs, kneeling, crouching or walking on uneven ground. [ 19 ] Ms. Kuhlmeyer testified that she called the employer on October 12, 2011 regarding the visit to the work site by the return to work specialist, Mr. Chris Jones and Ms. Ramcharan responded that you have reached Imperial. When Ms. Kuhlmeyer asked her about it, Ms. Ramcharan indicated that it was her personal phone.

In regard to the meeting between Mr. Jones, the owner and Mr. Ramgobin that took place on October 17, 2014, Ms. Kuhlmeyer testified that Mr. Ramgobin indicated he was still having difficulties walking, weight bearing and still attending therapy two days a week. In addition, the employer indicated that the business was slowing down and more difficult to accommodate a return-to-work plan for Mr. Ramgobin. [ 20 ] Furthermore, Ms. Kuhlmeyer told the court that she had some concerns about the mis-information in the Form 7, concerns about the wages reported that looked a lot for a small restaurant where Mr.

Ramgobin was making $17/ hour and where people normally work for $12 or $13 an hour, the doctor not wanting to give her medical information, the emergency report from the Scarborough General Hospital that has next of kin contact for Mr. Ramgobin as Shanta Ramcharran, the employer. Ms. Kuhlmeyer testified that she requested the surveillance of Mr. Ramgobin and the Regulatory Services Division approved that request in June or July 2011. She also told the Court that despite seeing the surveillance video earlier in mid-October; Mr.

Ramgobin continued to receive loss of earning until November 2011. [ 21 ] The evidence from the surveillance video of Mr. Kumar Ramgobin could be encapsulated as follows: • On August 13, 2011, at 11:01 a.m., Mr. Ramgobin was seen getting in the driver seat of a motor vehicle from the address located at 26 Amanda Avenue in Brooklin, driving and then getting out of the vehicle in front of Mystic Restaurant at 11:47 a.m. He opened the door of the restaurant, bent his knee and straitened the rug; without any sign of limping; • Later on, he was observed carrying bags of groceries and walking without a limp.

Then, bringing two cases of Red Bull from the back of the vehicle, putting them on the ground to close the hatch and then picking them up from the ground to carry them into the restaurant;

• Later in the night, he was seen behind the counter, serving customers, preparing drinks and engaging in activities. At 2:52 a.m., Mr. Ramgobin was observed coming out of the restaurant, opening the passenger door of the car and leaving with a female in the driver side; • On August26, 2011: At noon and two days after the WSIB Knee Clinic Assessment on August 24, Mr.

Ramgobin was seen at the front of the restaurant putting out some mats, bending over, picking them up as well sweeping, pulling weeds for close to 20 minutes without using a crutch or a cane; • Later on the same day, we see him walking with a small boy into Home Depot and coming out of the store with a bag in each hand, opening a red vehicle on the driver’s side and driving. We then see him in different activities behind the bar; • On August 27, 2011 at 11:53 a.m., we see Mr. Ramgobin opening the front door of the Mystic Restaurant.

Later on, we see him putting a couple of trays of food into a taxi. [ 22 ] After watching the surveillance of Mr. Ramgobin in October 2011, Ms. Kuhlmeyer testified that her perception is that he was at work and that he was working. His level of impairment looked less than the report she received from the Knee Clinic Assessment on August 24 th , 2011. [ 23 ] After her conversation with Mr. Ramgobin on November 21, 2011, Ms.

Kuhlmeyer testified that she sent him a letter dated December 8, 2011 confirming that he misrepresented his level of impairment and the surveillance confirmed that he had a much higher ability to perform regular duties as a Manager and bartender on several occasions and for prolonged periods. [ 24 ] She testified that Mr. Ramgobin and his Counsel filed an appeal and the file went to the Appeals Resolution Officer (ARO) who upheld Ms. Kuhlmeyer’s decision and asked her to claw the benefits of Mr. Ramgobin back to August 2011. This letter of the ARO was dated November 28, 2012.

The Court heard from the Prosecution’s Second Witness, Mr. Lane Patterson. His testimony could be encapsulated as follows : [ 25 ] Mr. Patterson has been working for Kurt Wruck and Associates, a private investigation firm in Toronto for approximately a year. He is licensed to act as a private investigator in the Province of Ontario since 1977. Before joining this company, he worked with the firm King Reed & Associates. [ 26 ] He told the Court that Carrie Millman from the WSIB in Toronto asked him to do this surveillance.

He explained that the majority of their work is done for insurance companies regarding injury claims. Furthermore, he indicated that Ms. Millman first asked him to conduct surveillance on Nankumar Darsan. They were given a general description and age and it took them couple of days to determine the identity of the claimant (Exhibit 32). [ 27 ] Mr. Patterson testified that they started their surveillance in June and July and the first time they were able to positively identify the claimant was on August 13, 2011.

He explained that they had difficulty identifying the claimant because they didn’t have any photograph of him, just an age and two possible addresses: one was 1255 Birchmount Rd. Scarborough and the other one was on Amanda Drive in Brooklin as well as the Mystic Restaurant on Eglinton. [ 28 ] In addition, Mr. Patterson testified that on August 13, 2011 at 11 am, the claimant was observed driving a Burgundy Highlander from Brooklin to the Mystic Restaurant in Scarborough. Also, they observed him carrying some mats outside the restaurant, carrying some plastic bags and a box from the highlander into the restaurant.

He also carried two flats of bottled drinks that he picked up from the ground. Mr. Patterson testified that the claimant arrived at the Mystic Restaurant at 12:00 p.m. and left at 2:52 a.m. the following day. [ 29 ] Furthermore, he testified about the surveillance that took place on August 26, 2011; which started from noon to 3:17 a.m. the next day. Mr. Patterson told the Court that approximately 20 people were in the restaurant that day; and the number would have increased as the night went on. It was a nightclub type of atmosphere.

In addition, he testified that the claimant worked the till and took orders from customers, in addition to another female who was working there. [ 30 ] The Court also heard from the defence’s Witness, Ms. Banmati Ramcharan. She is the owner of the Mystic Restaurant and

the employer. Her testimony could be summarized as follows : [ 31 ] Ms. Ramcharan testified that she had a past romantic relationship with Mr. Ramgobin that ended in 2005 and another one of Employer-Employee. She told the Court that Mr. Ramgobin used to work for her at Mystic Restaurant in 2009 and 2010 and then got laid off. He was called back on March 25, 2011 and that they are still friends. [ 32 ] In regard to Mr.

Ramgobin’s duties, she testified that he used to open the restaurant, clean the premises, sweep, mop and clean the washroom as well as take orders, repack the fridge and help the cook out in the kitchen if needed. She told the Court that after his accident, Mr. Ramgobin went to WSIB. In addition, he used to come back a few times to the Restaurant when he goes to therapy and that he tried to help out by picking up a beer bottle and putting it back at the bar. She also told the Court that he tried sweeping one time and picked up the cigarette butts outside.

In addition, he could sit around, have a drink and if she is at the back of the restaurant or in the kitchen and someone wants a beer, he would give it to them. However, she told the Court, this took place very rarely and that he was not working there. [ 33 ] Ms. Ramcharan testified that when Chris Jones of the WSIB came the first time to meet them, he wanted to see how Mr. Ramgobin was doing and the second time, he came to discuss back to work light duties. She told the Court that she explained to Mr. Jones that Mystic Restaurant is small and it is only a one person operation.

In addition, she can’t afford to pay him and pay herself at the same time because if he is there, she has to be there. Furthermore, she testified that there were no modified duties for Mr. Ramgobin and this situation has not changed from then to now. [ 34 ] Furthermore, Ms. Ramcharan testified that Mr. Ramgobin could be seen behind the bar area of the Mystic Restaurant because the lights are very high and the waitress very short, therefore, she would ask him to switch the light for her.

She also told the Court that she has another business called International Travel and Tourism and that she answers the phone International with her personal cellular phone. In addition, Ms. Ramcharan testified that Mr. Ramgobin has a record of employment and that she was running the restaurant for a couple of years; however, she does not have any pay stubs to show the court that she was paying him to work there. When she was asked if she drew a salary for herself, she replied that she did, but that she did not have any pay stubs, and that she paid herself with cash.

Also, she paid him with cash if he needed to be paid right away and the last time she paid him, she gave him $700. Ms. Ramcharan told the Court that she did not know, off-hand, how much she was earning per year at this restaurant and that she was unable to produce any T4 slips, either. THE POSITION OF THE PARTIES: [ 35 ] The Prosecutor’s position is that the defendant, while receiving benefits from the WSIB, returned to his former place of employment, the Mystic Restaurant, where he was performing the duties he was doing prior to his injury on April 25, 2011.

The Prosecutor relies on the surveillance performed, during which he was observed both working and driving during the key periods of time before the Court, which conflicts with what he told his doctors and his WSIB claim manager. [ 36 ] The Prosecutor sought to prove that his WSIB claim was suspicious from the beginning to the end. Furthermore, the Case Manager, Ms. Kuhlmeyer, noticed many inconsistencies, including the difference in the date of hire, in the names of the defendant, in his addresses; even in re-injuring of an existing injury.

Therefore, the prosecution submits that his claims and statements were suspect and even akin to fraud. [ 37 ] Furthermore, when the defendant filed his progress report or Form 41 on September 9, 2011, the Prosecutor contends it was a false statement, since he indicated that he was not working, had lost time from work and stated that he had not returned to work.

Furthermore, the Prosecutor alleges that the surveillance sent by WSIB to observe him, found him working from noon to 3:00 am in the Mystic Restaurant on August 13, 2011, as well working again on August 26 and 27, 2011. [ 38 ] In addition, when he told the WSIB’s return to work specialist, Mr. Chris Jones, on October 17, 2011, that he was not able to work, the prosecution alleges that it was also a false statement.

The Prosecutor contends that the defendant, Kumar Ramgobin, committed an offence under the Workplace Safety Insurance Act when he failed to report the changes in his circumstances or conditions that took place between August 23 rd , 2011 and September 25 th , 2012 to the Board within 10 days after the changes occurred, and that he made false statements. Furthermore, the Prosecution contends that his actions were intentional, wilful and voluntary.

[ 39 ] The defence’s position was that Mr. Ramgobin was not working at the Mystic Restaurant after his injury on March 25, 2011 and while receiving the benefits from the Board. They submit that he was at his former place of work to have some drinks and to socialize with some friends. Periodically, he was just helping out for short periods of time. [ 40 ] The defence submits that there was no modified work available, which he could handle. In addition, the surveillance video is consistent with what he has been stating.

It is also consistent with the finding of the hip and knee clinic assessment and their restrictions. Under their restrictions, Mr. Ramgobin was not supposed to do heavy lifting, carrying, pushing and pulling, kneeling, crouching, low level lifting, prolonged standing and walking, climbing stairs or ladders, or walking on uneven ground. The defence contends that he was not seen in the footage of the surveillance doing heavy lifting. In the surveillance, he was seen sweeping, which involves standing and walking, but not for a prolonged time. [ 41 ] Furthermore, the defence submits that because Ms.

Kuhlmeyer testified that she had concerns about the date of hire, and the names on the reports, she has given up on him. She did not enquire directly of him to seek clarifications about her concerns. Moreover, Ms. Kuhlmeyer did not consider retraining him, even though he disclosed to the WSIB in his progress report dated September 9, 2011, that he was feeling better. [ 42 ] Furthermore, the defence submits that the employer, Ms. Ramcharan testified that she took over Mr. Ramgobin’s duties. She had to hire a replacement on the weekend when it was busier and to rely on her brother who came and helped her sometimes.

In addition, the owner indicated that normally she has only two staff on duty at a time, the cook and the server, and that she could not afford to hire Mr. Ramgobin to do light work and another employee to do heavy things. The Legislation : [ 43 ] Subsections 149 (1) and 149 (2) of the Act state as follows: Offence, false or misleading statement 149

(1) A person who knowingly makes a false or misleading statement or representation to the Board in connection with any person’s claim for benefits under the insurance is guilty of an offence Same, material change in circumstances 149

(2) 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. [ 44 ] Furthermore, a worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan under Insured injuries, s. 13.(1).

In addition, a person who receives benefits or is entitled to receive benefits under the Act is directed under s. 23(3) to notify the WSIB of a material change in circumstances in connection with their entitlement to benefits within 10 days of the change occurring, as follows: Continuing obligation to provide information 23

(1) A person receiving benefits under the insurance plan or who may be entitled to do so shall give the Board such information as the Board may require from time to time in connection with the person's claim.

(2) Effect of non- compliance If the person fails to comply with subsection (1), the Board may reduce or suspend payments to him or her while the non-compliance continues.

(3) Notice of material change in circumstances A person receiving benefits under the insurance plan or who may be entitled to do so shall notify the Board of a material change in

circumstances in connection with the entitlement within 10 days after the material change occurs. The Nature of the Alleged Offences: [45] The Court turned its mind to the offences contained in subsections 149(1) and 149 (2) of the Act to determine if they are mens reaoffences. [46] In particular, the Court relied upon the analysis of the Supreme Court of Canada in R. v. Sault-Ste. Marie, (S.C.C.),[1978] 2 S.C.R. 1299, which addressed the categorization of regulatory offences. Applying the categories of offences enunciated in thisjudgment, and other applicable jurisprudence, such as R. v. Kester (1982), (ON CA), 38 O.R. (2a) 294 (O.C.

A) andthe Supreme Court of Canada’s judgments in R. v. Théroux (SCC), [1993] 2 S.C.R. 5; as well as R. v. Docherty, (SCC), [1989] 2 S.C.R. 941; and R. v.

Stone, (1985), (NL SC), 22 C.C.C. (3d) 249, the Court is of theopinion that since the offence under s. 149(1) refers to "knowingly" make a false or misleading statement or representation, and theoffence in s. 149 (2) refers to "wilfully" fail to inform the WSIB of a material change, they both denote mens rea offences. [47] Furthermore, in Théroux, (then) Justice McLachlin held as follows at page two regarding the mens rea: In this case, it is clear from the trial judge's findings that the offence of fraud is made out.

The actus reus is established: the accusedcommitted deliberate falsehoods [page7] which caused or gave rise to deprivation. She continues: The mens rea too is established: theaccused told the depositors that they had insurance protection when he knew this to be false. By this act he was knowingly depriving thedepositors of something they thought they had, namely insurance protection. It may also be inferred from his knowledge that insuranceprotection was not in place that the accused knew that he was subjecting the depositors' money to risk.

The fact that he sincerelybelieved that the houses would be built, and that the deposits would not be lost, was no defence to the crime. In addition, (then) Justice McLachlin added the following at para. 39 of Théroux: [48] In my view, the approach to the offence of fraud adopted in Olan and perused in these reasons does not take us out of the properdomain of the criminal sanction. To establish the actus reus of fraud, the Crown must establish beyond a reasonable doubt that theaccused practised deceit, lied, or committed some other fraudulent act.

Under the third head of the offence it will be necessary to showthat the impugned act is one which a reasonable person would see as dishonest. Deprivation or the risk of deprivation must then beshown to have occurred as a matter of fact.

To establish the mens rea of fraud the Crown must prove that the accused knowinglyundertook the acts which constitute the falsehood, deceit or other fraudulent means, and [page26] that the accused was aware thatdeprivation could result from such conduct.[emphasis added] [49] Furthermore, the Supreme Court of Canada held in Docherty, at paragraph 13 as follows: The word "wilfully" is perhaps the archetypal word to denote a mens rea requirement. It stresses intention in relation to the achievementof a purpose. It can be contrasted with lesser forms of guilty knowledge such as "negligently" or even "recklessly".

In short, the use of theword "wilfully" denotes a legislative concern for a relatively high level of mens rea requiring those subject to the probation order to haveformed the intent to breach its terms and to have had that purpose in mind while doing so. [emphasis added] [50] Therefore, the offences prescribed in s. 149(1) and s. 149(2) are mens rea offences and the onus is on the prosecution to provebeyond a reasonable doubt that the defendant committed the actus reus of the offence with the requisite fault element of intent, will andknowledge. [51] In this matter, the Prosecution must prove beyond a reasonable doubt that the defendant, who was the person who was entitled toWSIB benefits, knowingly made a false or misleading statement or representation to the WSIB in connection with his claim for benefitson September 9, 2011 and on October 17, 2011. [52] In addition, the Prosecution must prove beyond a reasonable doubt that the defendant, who was the person who was entitled to theWSIB benefits, failed to report a material change in his circumstances or conditions in relation to his entitlement within 10 days of the changes occurring between August 23rd, 2011 and September 25th, 2012. [53] As indicated earlier, the court recognizes that the burden on this matter rests with the prosecution.

The defendant does not have thelegal or persuasive burden to prove the lack of mens rea or that the prohibited act or omission was not committed voluntarily. The issue,then, is whether the defendant did voluntarily commit the prohibited act or omission, with the requisite mental intention. The Mens Rea Element: [54] To appreciate the element of the mens rea of a crime or an offence, the Court has given specific attention to the judgment of the

1982 Ontario Court of Appeal in R. v. Kester, (supra). In their judgment, Justice Jessup indicated the following at page 4 and 5: The learned Provincial Court Judge, while satisfied that the offences were fully proved by the Crown, unfortunately did not in so manywords deal with the element of knowledge required by the key phrase quoted above. On appeal, where for the first time the accused wasrepresented, the learned County Court Judge concluded that the offence created by s. 17(2) was a strict liability offence for which it wasopen to the accused to show a defence of due diligence.

He found that the word "knowingly" (sic) suggested not a mens rea offence, butmerely a strict liability one: see 49 C.C.C. (2d) pp. 461-3. Regretfully, I am unable to agree with this conclusion. To me, the phrase "knowing it to be an unfair practice" requires proof by theCrown of a specific mens rea or guilty state of mind. Justice Jessup continued at page 6 as follows: Proof of the mens rea required by s. 17(2) of the Act involves proof of a question of fact, not of law. If the accused did not know that herconduct was unlawful, that is not a defence for it is a question of law and not of fact.

Ignorance of the law is no excuse. In proving the mens rea required by the section, the prosecution is not limited to direct evidence of the facts to be proved, for proof maybe made by inference as well.

Accordingly, in a case such as the present, where ample evidence was given that the accused made a largenumber of untrue and unconscionable consumer representations, and indeed that she developed and carried into effect a planned schemeof untrue and unconscionable consumer representations, it is open to the trier of fact, employing ordinary logic and common sense, todraw the inference from the facts proved that the accused knew that the representations were untrue or unconscionable. If authority beneeded to support this proposition, the Sault Ste.

Marie, case, supra, may again be referred to, at p. 373 C.C.C., p. 181 D.L.R., p. 1325S.C.R., where in describing the mens rea class of offences, Dickson J. says: " ... some positive state of mind ... must be proved by theprosecution either as an inference from the nature of the act committed, or by additional evidence". [55] Furthermore, the Court carefully reviewed the Supreme Court of Canada’s judgment in R. v.

Daviault, (SCC),[1994] 3 S.C.R. 63, where (then) Justice Cory, on behalf of the majority, held that the mens rea element of an offence concerns thewilled or voluntary conduct in committing the following at para11: It can thus be seen that with the development of principles recognizing constituent elements of crimes, particularly the need for a mentalelement, there came the realization that persons who lack the requisite mental element for a crime should not be found guilty ofcommitting that crime.

For centuries it has been recognized that both the physical and the mental elements are an integral part of acriminal act. It has long been a fundamental concept of our criminal law. [56] Furthermore, in Theroux, (then) Justice McLachlin held at paras 21-23 the following regarding the test for the mens rea of anoffence: This brings me to the question of whether the test for mens rea is subjective or objective. Most scholars and jurists agree that,leaving aside offences where the actus reus is negligence or inadvertence and offences of absolute liability, the test for mens rea issubjective.

The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether theaccused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the court looks to theaccused's intention and the facts as the accused believed them to be: G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 727-28. Two collateral points must be made at this juncture. First, as Williams underlines, this inquiry has nothing to do with theaccused's system of values.

A person is not saved from conviction because he or she believes there is nothing wrong with what he or sheis doing. The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, notwhether the accused believed the acts or their consequences to be moral. Just as the pathological killer would not be acquitted on themere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that whathe was doing was honest.

The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thoughtwas in the accused's mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferredfrom the act itself, barring some explanation casting doubt on such inference. The fact that such an inference is made does not detractfrom the subjectivity of the test. [57] Moreover, in Stone, Justice Binnie accepted that the prosecution may rely on the inference that

an act done by an apparentlyconscious individual is willed or voluntary to discharge the onus of proving the accused willed or voluntarily did the prohibited act oromission, unless there are grounds to believe that the accused was unable to control that act or omission. He said at para. 37 whatfollows: The criminal law is premised on the responsibility of sane individuals for their voluntary acts or omissions. We infer from

common experience that the acts of an apparently conscious person are usually voluntary. The issue here, however, is whether such an inference of voluntariness can be drawn after the trial judge has ruled that there is credible evidence that the accused was unconscious throughout the commission of the offence. The Onus and the Burden of Proof: [ 58 ] Based on the reasoning in Stone , the Court can make the inference, that

an act from an apparently conscious person is considered willed or voluntary, thus discharging the Prosecutor of the onus to prove the mens rea element of the defendant knowing or willing or voluntarily committing the prohibited act. [ 59 ] In reviewing and assessing the meaning of material change in circumstances for workers as well as their legal compliance, in particular making a false or misleading statement, the Court reviewed the Board (WSIB) policy (Exhibit 2) as the guiding principle on making decisions regarding various benefits under the Act .

This policy is public and available on line at the WSIB’s website. It defines a material change in circumstances as any change that affects a person’s entitlement to benefits and services under the Act . It also lists the type of changes that are required to be reported to the WSIB.

The following are examples of material changes that could affect an injured worker's entitlement to benefits: • Changes in health care status, such as an improvement or a deterioration of the work related condition; a need for more or different treatment, or surgery; stopping treatment; or a need for an assistive or prosthetic device, or to make changes to an existing device. • Changes in earning or income, such as getting a wage increase or decrease; receiving CPP/QPP disability benefits because of the work-related injury; or increases or decreases in CPP/QPP disability benefits. • Changes in work status, such as the alteration of job duties or hours because of the work-related injury; termination because of the work-related injury; or retirement or otherwise voluntary departure from the workforce. • Changes in availability for, or cooperation in, health care or work reintegration activities, such as changing address or leaving the province; being sentenced to prison or being imprisoned; having a non-related clinical condition that restricts ability to work [ 60 ] The

section of Compliance for workers answers some legal responsibilities of the injured workers while receiving benefits under the Act .

For example, it lists the following responsibilities: • Cooperating in your early and safe return to work, such as contacting your employer as soon as possible after the injury occurs and keeping open lines of communication throughout your recovery; help your employer find work for you that allows you to return to the workplace as quickly and safely as possible and give the WSIB any information we request relating to your injury or return to work; • Reporting any material change in your situation; such as the requirement by law to report such change within 10 days and failure to report such change within 10 days could result in penalties; • Making false or misleading statements to WSIB is an offence.

It also provides examples of fraudulent or non-compliant behaviour such as falsely claiming that an injury is work-related; misrepresenting your level of impairment to receive WSIB benefits and working and receiving income while receiving the WSIB benefits. [ 61 ] Therefore, if a person fails to inform the WSIB of a material change in circumstances, the WSIB presumes that this is intentional and therefore wilful, unless the person can demonstrate having no knowledge of the change. ISSUES: [ 62 ] The Court identified the following issues that have arisen in this proceeding and which need to be addressed:

a) The first issue is whether between the 23 rd of August 2011 the 25 th of September 2012 has there been a material change in the circumstances or condition of the defendant, Kumar Ramgobin, that could affect the defendant's entitlement to benefits, which required or obligated the defendant to inform the WSIB within 10 days of such change occurring?

b) The second one is to determine if on or about the 9 th of September 2011 and on or about the 17 th of October 2011 has the defendant, Kumar Ramgobin, made false or misleading statements or representations to the WSIB regarding the defendant's claim of benefits?

c) Did the defence raise or create a reasonable doubt that the defendant, Kumar Ramgobin, did not voluntarily or did not have knowledge or the wilful intention in committing the prohibit act or omission under s. 149(1) and s.149 (2) or that there is reasonable doubt that the actus reus of the offences had not been voluntarily committed by the defendant?

d) Has the prosecution proven beyond a reasonable doubt that the defendant had wilfully failed to inform the WSIB of a material change in circumstances in connection with his entitlement to benefits within 10 days after the change occurred between the 23 rd of August 2011 and the 25 th of September 2012?

e) Has the prosecution proven beyond a reasonable doubt that the defendant on or about the 9th of September 2011 and on or about the 17th of October 2011 had knowingly made false statement or misleading statement or representation to the WSIB in connectionwith the defendant’s claim for benefits? ANALYSIS: [63] The credibility of the defendant is critical in this case. In assessing his credibility, the Court relies upon the test established byJustice Cory, in R. v. W. (D), (SCC), [1991] 1 S.C.R. 742, as follows: 1. First, if you believe the evidence of the accused, obviously you must acquit. 2.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. 3.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [64] In terms of credibility for this matter, the Court finds itself at the third step of this analysis, based on the following evidence: A: HAS THERE BEEN A MATERIAL CHANGE IN THE DEFENDANT'S CIRCUMSTANCES OR SITUATION INCONNECTION TO THE DEFENDANT'S ENTITLEMENT TO BENEFITS THAT OBLIGATED THE DEFENDANT TO INFORMTHE WSIB OF THIS CHANGE WITHIN 10 DAYS OF THIS CHANGE OCCURING? [65] On the issue of whether there had been a material change in the circumstances and conditions of the defendant that occurred between the 23rd of August 2011 and the 25th of September 2012 that could affect the defendant's entitlement to benefits, the Courtaccepts that there is overwhelming evidence adduced showing that Mr.

Ramgobin was performing, if not the totality, at least the majorityof the duties he used to do at the Mystic Restaurant before his injury on April 25, 2011. [66] The Court finds as a matter of fact that Mr. Ramgobin was not just helping out and for short periods of time. He was observedopening the restaurant at noon and not leaving till it closes around 3:00 a.m. In addition, he was observed cleaning and sweeping thesidewalk and vestibule area for close to 20 minutes without a break.

He was observed walking without limping, pulling weeds with hisknee slightly bent and without the assistance or the use of a cane or a crutch. [67] In addition, the Court accepts the evidence from the surveillance that Mr. Ramgobin was engaged in activities behind the counter ofthe restaurant and serving customers. He was observed pulling from the back of a car two cases of Red Bull, putting them down on theground and then lifting them up to his waist level and carrying them to the restaurant; which in itself is reasonably heavy for someonewho was not supposed to engage in heavy lifting. Mr.

Ramgobin was also observed putting a couple of trays of food into a taxi. [68] Furthermore, the Court accepts the evidence that Mr. Ramgobin was driving a motor vehicle on several occasions for a long distanceof close to 80 kilometers from 26 Amanda Avenue in Brooklin to the Mystic Restaurant in Scarborough. He was observed driving awoman on the passenger’s side as well as driving a child to Home Depot store. [69] Thus, the Court finds as a matter of fact that Mr.

Ramgobin was able to engage in various demanding physical activities two weeksprior to his medical assessment at the hip and knee clinic on August 24 2011, and two days after that; including carrying objects such asthe two boxes of Red Bull and driving a motor vehicle despite telling the WSIB that he was not able to work as well as that he was notable to drive and he does not drive. Mr. Ramgobin was required to inform the Board of any change in his circumstances and hissituation; which he failed to do within 10 days of this change occurring. [70] When Mr.

Ramgobin went back to the same place of employment, the Mystic Restaurant, to perform duties he was previously doingwhile at work and receiving at the same time benefits from the WSIB, he had an obligation to inform the Board, his Case Manager or thereturn to work specialist. Mr. Ramgobin willfully failed to fulfill his obligation to inform the WSIB about this material change and theCourt can reasonably infer that he knew or ought to have known this was a material change that could have affected his entitlement tocontinue receiving the benefits from the WSIB.

In addition, when he told the Knee clinic assessment and the Board that he could notdrive, but he was observed driving, it is reasonable to infer that he knew or ought to have known that he was driving and not telling themthe truth about this material change in his condition. Also, the Court can reasonably infer that the defendant’s failure to inform the WSIBof this material change within 10 days of the change occurring is presumed to be intentional, and therefore, willful. [71] Therefore, the prosecution has proven beyond a reasonable doubt that there has been a material change in Mr.

Ramgobincircumstances and that the defendant had wilfully failed to inform the WSIB of such change in connection with his entitlement to benefits within 10 days after the change occurred between the 23rd of August 2011 and the 25th of September 2012.

B: HAS THE DEFENDANT, KUMAR RAMGOBIN, MADE FALSE OR MISLEADING STATEMENTS OR REPRESENTATIONS TO THE WSIB REGARDING THE DEFENDANT'S CLAIM OF BENEFITS ON OR ABOUT THE 9 TH OF SEPTEMBER 2011 AND ON OR ABOUT THE 17 TH OF OCTOBER 2011? [ 72 ] In regard to the second issue and the evidence that Mr. Ramgobin filed false or misleading statements or representation on his progress report of September 9, 2011 when he indicated that he was not working and that he has lost time and has not returned to work, the Court accepts that Mr.

Ramgobin was working in his previous place of employment, the Mystic Restaurant as observed by the surveillance on August 13 as well as on August 26 and 27, 2011. It was a false statement when he reported that he did not work anywhere nor was he self-employed between April 25, 2011 and the date of his statement on September 9, 2011. Furthermore, it was a false statement when he indicated that he had lost time and had not returned to work in regard to his current situation on his progress report (Exhibit 23).

It is clearly noted under the employee progress report and above where they sign their name and date the following: “It is an offence to deliberately make false statement to the WSIB as well as that I declare that all the information provided on this page is true.” [ 73 ] In addition, the Court accepts that it was a false and misleading statement when Mr. Ramgobin told the return to work specialist, Mr. Chris Jones, on October 17, 2011 that he wasn’t able to work.

Under the surveillance video, he was observed not only performing duties at his former place of employment, like opening the restaurant, serving customers, cleaning, sweeping, bringing boxes of soft drinks, but also driving a motor vehicle himself. [ 74 ] The defence contends that Mr. Ramgobin’s address was 1255 Birchmount Rd., Unit 212 in Scarborough where he was residing with his sister and not the one located at 26 Amanda Avenue in Brooklin. The court was told by the defence’s witness, Ms. Ramcharan that Mr.

Ramgobin lived at the address in Brooklin in the past and he used to visit his oldest son’s family that was living at that time at that location and spend time with his grandson. In addition, she told the court that certain documents have his address at Brooklin as his mailing address because he was travelling at the time and it was for convenience. [ 75 ] The Court finds it difficult to believe that Mr. Ramgobin didn’t provide his family doctor with his proper residential address. The medical reports of Dr. Oryema (Exhibit 4) showed Mr. Ramgobin’s home address at Brooklin. In the same time, Mr.

Ramgobin provided the Emergency Department of the Scarborough General Hospital (Exhibit 5) on April 28, 2011 with his home address as 26 Amanda Avenue in Brooklin. Even the T4 and the pay stubs that were faxed on March 12, 2013 for Mr. Ramgobin showed that he was residing at 26 Amanda Avenue in Whitby (Exhibits 35). [ 76 ] Furthermore, the driver’s record of the Ministry of Transportation for Nankumar Darsan, his previous name, showed his last address since 18 October 2007 and until 28 September 2012 was 26 Amanda Avenue in Brooklin.

If this address was not his, the Court doesn’t understand why he didn’t change it for the last five years, taking into consideration that it is an offence under the Highway Traffic Act , ONTARIO REGULATION 340/94, s. 33 . (1): The holder of a driver’s licence who changes his or her address shall, within six days after the change, send by registered mail or have filed with the Ministry a notice in writing, or electronically in a format designated by the Ministry, of the change giving the former address, the present address and the number of his or her driver’s licence. [ 77 ] The Court also accepts the evidence from the Assessment at the Knee and Hip Specialty Clinic of Sunnybrook done by Dr.

Cameron on August 24, 2011. This report is partially based on what Mr. Ramgobin told them in their discussion and their interview. He reported, among others, that he is not able to drive to and from work due to physical limitations and that he is not able to drive a car independently. There is clear evidence before the court through the surveillance video that Mr. Ramgobin was able to drive independently; even to drive with a child on the passenger seat. He was observed driving two weeks prior and two days after this assessment. The Court finds that Mr.

Ramgobin deliberately misled the doctors about his abilities. [ 78 ] The Court could reasonably infer that Mr. Ramgobin and was not forthcoming with the WSIB when he told them that he is not working, unable to work and that he doesn’t drive by himself a motor vehicle. Therefore, the Court finds that the prosecution has proven beyond a reasonable doubt that the defendant knowingly and deliberately made false and misleading statements on September 9, 2011 and on October 17, 2011 in regard to his claim of benefits with the WSIB, so that he could continue to collect his WSIB benefits.

C: DID THE DEFENCE RAISE OR CREATE A REASONABLE DOUBT THAT THE DEFENDANT, KUMAR RAMGOBIN, DID NOT VOLUNTARY OR DID NOT HAVE KNOWLEDGE OR THE WILFUL INTENTION IN COMMITTING THE PROHIBIT ACT OR OMISSION UNDER S. 149(1) AND S.149 (2) OR THAT THERE IS REASONABLE DOUBT THAT THE ACTUS REUS OF THE OFFENCES HAD NOT BEEN VOLUNTARILY COMMITTED BY THE DEFENDANT? [ 79 ] The Court recognizes that the defence has the ability to avoid liability by raising doubt in the mind of the Court by presenting evidence which can establish that Mr.

Ramgobin did not voluntarily commit the prohibited act or omission and that he did not have the wilful intention for committing the offence. The defence's attempt to diminish the prosecution's case was four-folds: [ 80 ] First: The defence contends that Kumar Ramgobin wasn’t working at the Mystic Restaurant after his injury on March 25, 2011 and while receiving the benefits from WSIB. He went back to his former place of employment when he was going to his physiotherapy to

have some drinks, to socialize and to hang out with some friends. The Defence contends that he was just helping out periodically and justfor short periods of time. The Court doesn’t accept this submission as there is compelling evidence that showed the defendant performing regular duties at theMystic restaurant that he was doing before his injury. The surveillance video showed Mr. Ramgobin opening the restaurant, sweeping,cleaning, bringing two boxes of soft drinks, serving customers at the bar for extended period of time and leaving the restaurant at 3:00a.m.

His actions and activities show clearly that he wasn’t visiting the restaurant as a patron, socializing and enjoying few drinks withfriends. He was at his former place of employment doing his work of cleaning, serving customers, being behind the bar and the counterfor extended period of time, putting trays of food in a taxi and staying till the close of the restaurant at 3:00 a.m. To the Court, areasonable person would see the actions of Mr.

Ramgobin as those of someone who is working long hours and not those of someone whois helping out and enjoying himself as a paying customer. [81] Second: The defence contends that the assessment of the Knee and Hip Clinic of Sunnybrook Hospital, dated August 24, 2011, byindependent, impartial and professional doctors placed some restrictions on Mr. Ramgobin that he shouldn’t do. These restrictionsinclude among others, heavy lifting or carrying, no pushing or pulling, no kneeling, crouching or low level lifting as well as no prolongedstanding or walking and whatever is not part of these restrictions Mr.

Ramgobin could do, including light lifting. The court accepts the evidence that showed Mr. Ramgobin pulling the Red Bull boxes out of the back of the vehicle, putting them downon the ground and lifting them back up to the waist level. This action is considered to be a heavy lifting for someone in the circumstancesof Mr. Ramgobin who has back pains and knee problems. In addition, the court accepts the evidence that showed the defendant bendingat his waist with his knee slightly bent for more than 30 seconds as well as sweeping and standing for a prolonged period of time. In the same medical report, Mr.

Ramgobin told the doctors he was concerned about returning to work because he was unable to driveback and forth to work due to his limitation and that he wasn’t able to perform any productive work at that time due to his poor symptomcontrol. [82] When the Court examines the progress reports from the Physiotherapist/chiropractor as outlined in Exhibit 16 and Exhibit 31, it isclear that they do not correspond.

The last report has only the defendant’s name and everything else was left blank, including the date ofexamination, the name and signature of the doctor. [83] Furthermore, the Court considered the judgment of the Ontario Court of Justice, in Ontario (Workplace Safety and Insurance Board)v.

Koomson, 2011 ONCJ 755 – 2011-12-06, in which His Worship Quon indicated that WSIB is not required to prove there hadbeen a material change in the defendant's circumstances by a medical report or opinion or expert testimony, it could prove there had beena change in the defendant’s conditions by other means or report: including the surveillance video.

At paragraph 126, Justice Quonindicated that the WSIB can rely on other means besides medical reports to prove there has been a material change in a particularworker’s circumstances: Accordingly, the WSIB is entitled to rely on other means besides medical reports to prove there has been a material change in aparticular worker's circumstances, when, as in the instant case, there is a question about a worker's sincerity or where there has been anattempt by the worker to evade or not participate in medical assessments for determining their entitlement to receive benefits.

Suchmeans could include using videotapes to show the physical abilities of an injured worker has materially changed or the testimony ofwitnesses who have observed a worker's activities or conduct to show there has been a change or an inconsistency in the purportedmedical condition or health status of a worker.

Ergo, requiring medical opinions to prove material changes may make it too onerous forthe WSIB to effectively enforce provisions of the Workers Safety and Insurance Act, 1997, or to maintain the proper function of thislegislated scheme that provides rehabilative, economic, and healthcare benefits to injured workers, or to prevent fraudulent activity orabuse of the scheme, especially when there is an incentive for an injured worker to feign or exaggerate symptoms or ailments, which maybe difficult to confirm objectively. [84] The Court relies upon this passage from Koomson, and gives very little weight to the medical reports, as there are many seriousinconsistencies with the evidence observed through the surveillance video regarding the abilities and the activities performed by thedefendant, while receiving benefits from the WSIB. [85] The third defence contention was that there was no modified work available that Mr.

Ramgobin could handle. In addition, theemployer indicated that there is no suitable modified work available for Mr. Ramgobin as the Mystic Restaurant is a small place withnormally two employees on duty at a time: a cook and the server who is in front, looking after the bar, taking food, delivering the food tocustomers, delivering drinks, stocking the bar and general clean up.

[ 86 ] The Court accepts the evidence that large portion of Mr. Ramgobin’s job was looking after the bar, taking food orders, delivering food to customers, delivering drinks without involving heavy lifting. It could involve a period of standing and walking, restocking the fridge and supplies. The evidence from the surveillance video showed Mr. Ramgobin just doing that when he thought no one was looking at him, contrary to what he told his doctors and the WSIB. When he told his doctors that he tried to work one day but he could not cope.

The Court has seen evidence that he worked at the Mystic Restaurant more than one day not only performing modified work but the work he was doing prior to his injury. He worked from noon to 3:00 a.m. allowing his employer to receive a benefit from him being at work while WSIB is paying him a full wages. [ 87 ] The Court rejects the testimony of his employer that there was no suitable modified work for Mr.

Ramgobin at the Mystic Restaurant during the period he was receiving benefits from the WSIB, as the overwhelming evidence showed the contrary. [ 88 ] The fourth point of contention by the defence is that the WSIB Case Manager has given up on Mr. Ramgobin because she had concerns about the date of hire, the names on the reports, the addresses, the medical reports and that he was working there two years before being rehired and he had the injury in April 2011. [ 89 ] There is no evidence before the court to suggest that the Case Manager had any problem of communication with Mr.

Ramgobin and she paid him his benefits from the beginning. Ms. Kuhlmeyer simply was not receiving the information she requested. Even though she had concerns about his claim, and despite seeing the surveillance video in mid-October, Mr. Ramgobin continued to receive loss of earning until November 2011. Mr. Ramgobin was required under section 23 (1) to provide such information in relation to his claim. The onus is on him to provide the medical and other information required from him and not to withhold it from the WSIB. A reasonable person could have told Ms.

Kuhlmeyer about his change of name and that his previous medical records could be attached to that name and he could have facilitated access to the medical record. From the evidence before the court, there is overwhelming evidence that Mr. Ramgobin was not forthcoming with providing the information in relation to the change in his circumstances while receiving benefits from the WSIB. For the court, his actions were wilful and deliberate in order to continue receipt of the WSIB benefits.

D HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT THE ACTUS REUS AND THE MENS REA OF THE OFFENCE BEFORE THE COURT? [ 90 ] After reviewing the relevant case law, the totality of the evidence, which includes viva voce evidence, documentary and surveillance evidence and after careful review of the submissions from the Prosecution, and Defence Counsel, the Court finds that the prosecution has met their onus of proving both the actus reus and mens rea of the offences in section 149 (1) and Section 149 (2) of the WSIA.

The prosecution has proven beyond a reasonable doubt there was a material change in Kumar Ramgobin’s circumstances and conditions that occurred during the period between August 23, 2011 and September 25 th , 2012, in connection to the defendant's entitlement to receive WSIB benefits. [ 91 ] The primary material change that would have affected Mr.

Ramgobin’s entitlement for benefits from WSIB concerns his return to his former place of work, opening the restaurant, cleaning, serving customers, engaging in activities behind the counter, working at the bar and working from noon to the early hours of the morning. [ 92 ] The second material change that would have affected the benefits that Mr. Ramgobin was receiving from the WSIB is the evidence of his activities and abilities to drive a motor vehicle by himself and while in the company of passengers, including a woman and a child.

These activities took place two weeks prior and two days after his medical assessment at the Knee and Hip specialty clinic at Sunnybrook Health Centre where he told the doctors he was unable to drive to and from work and unable to perform any productive work due to poor symptom control.

In addition, this activity is inconsistent with what he told the WSIB and constitutes a clear material change in his circumstance and condition. [ 93 ] According to section 23 (3) of the Act , the defendant was required to inform the WSIB of this material change in his circumstances within 10 days of such change occurring and the Court is satisfied beyond a reasonable that that the defendant intentionally and wilfully chose not to inform the Board about the material change in order to continue collecting the benefits from the WSIB. [ 94 ] Furthermore, the Court is satisfied beyond a reasonable doubt that the Prosecution has proven that the defendant wilfully and knowingly made false and misleading statements on September 9, 2011 and on October 17, 2011 in regard to his claim of benefits with the WSIB.

He reported that he was not working and that he has lost time and hasn’t returned to work while the evidence shows him working in his previous place of employment, the Mystic Restaurant, as observed by the surveillance on August 13 as well as on August 26 and 27, 2011.

[ 95 ] In addition, he told the return-to-work specialist, Mr. Chris Jones, on October 17 that he wasn’t able to work and he was observed working at Mystic Restaurant and performing duties he used to do as a Manager at his former place of employment, among others, opening the restaurant, serving customers, cleaning, sweeping, bringing boxes of soft drinks. For the Court, the defence attempts to diminish the prosecution's case failed because the Court finds their evidence as insufficiently credible.

However, the Court finds there was ample credible and compelling evidence to convict the defendant on the three charges before the court. ORDER: [ 96 ] Based on the totality of the evidence before this Court, I find that the essential elements of each offence have been proven beyond a reasonable doubt. I am hereby entering convictions on all three counts, as charged. Dated at Toronto, this 21 st day of May, 2014. _____________________ Mohammed Brihmi, J.P.