Ontario (Workplace Safety & Insurance Board) v. Boparai, 2013 ONCJ 303

Citation: Ontario (Workplace Safety & Insurance Board) v. Boparai , 2013 ONCJ 303 Ontario (Workplace Safety & Insurance Board) vs. Surinderpal Boparai Trial Dates: Feb 21 & 22, 2013, M1 Court, Mississauga Oral Judgement: May 3, 2013, MER @ 1:00pm Prosecutor: Mr. J. Clarke Defence Counsel: Miss S. Tejpal (Articling Student from the Law Offices of John Kalina) Introduction: 1.

The defendant, Surinderpal Boparai , was charged with committing the following offence; that between the period of June 11 th , 2011 and June 23 rd , 2011, in the City of Mississauga, in the Province of Ontario, did wilfully fail to inform the Workplace Safety and Insurance Board of a material change in circumstances in connection with her entitlement to benefits within 10 days after the change occurred, contrary to section 149(2) of the Workplace Safety and Insurance Act, 1997, S.O. 1997,

Chapter 16 as amended. The Exhibits and Witnesses 2. During the course of the trial which occurred over two days, February 21 st , & February 22 nd , 2013, the Court heard from the Prosecution’s witnesses, Franceen Waxman, case manager with the Workplace Safety and Insurance Board and Yvette Brown, the occupational therapist, contracted by the Centre Rehabilitation & Health to care for Surinderpal Boparai. The defendant was represented through her legal counsel, Miss S. Tejpal, an articling student with the Law Offices of John Kalina and the Court also heard testimony from Surinderpal Boparai.

The Court was also presented with four exhibits, which were entered into the trial proper for the Court’s consideration, they were; Exhibit # 1(a) & 1 (

b) Two Surveillance DVD’s of Surinderpal Borporai, conducted by Investigator Karanagnostis from the Investigators Group Inc, on the dates of June 1, 2, 4, 5 th , 2011 Exhibit # 2 The Surveillance Report prepared by The Investigators Group. Exhibit # 3 Copy of Claims File of Surinderpal Borporai. Exhibit # 4 Reports from Dr. Barry Gilbert (Psychiatrist) The Case Law 3. In the Court’s analysis of the totality of the evidence presented at trial, the Court carefully reviewed the following relevant applicable case law, in particular the Court reviewed; • The 1978, Supreme Court of Canada case Regina vs. Sault Ste.

Marie (City) • The 1984, Supreme Court of Canada case Regina vs. Sansregret. • The 1982, Ontario Court of Appeal case Regina vs. Kester. • The 1982, Ontario Court of Appeal case Regina vs. Cotton Felts Ltd. • The 1989, Supreme Court of Canada case Regina vs. Docherty. • The 1991, Supreme Court of Canada case Regina vs. W.D. • The 1992, Supreme Court of Canada case Regina vs. Forster. • The 1993 Supreme Court of Canada case of Regina vs. Theroux. • The 1994, Supreme Court of Canada case Regina vs. Daviault.

• The 1995 Ontario Court of Justice case Regina vs. Mardave Construction

(1990) Ltd. • The 1999 Supreme Court of Canada case Regina vs. Stone. • The 2002 Supreme Court of Canada case Regina vs. Sheppard. • The 2002, Ontario Court of Justice case Regina vs. Virk. • The 2004 Ontario Court of Appeal case Regina vs. Klundert. • The 2010 Ontario Court of Appeal case Regina vs. Khawajal. • The 2010 Ontario Court of Justice case Regina vs. Costoff. • The 2011 Ontario Court of Justice case Ontario Workplace Safety and Insurance Board v. Koomson. • The 2012 Ontario Court of Justice case Ontario Workplace Safety and Insurance Board v. Valley. The Offence 4.

Recognizing the 2002 Supreme Court of Canada decision of Regina vs. Sheppard, which clearly enunciated the obligation of thetrial judge to give clear and meaningful reasoning in their judgements, the Court began its analysis of the totality of the evidence in thematter of Surinderpal Borporai by turning its mind to relevant case law which addresses the category of the offence of Section 149(2) ofthe Workplace Safety and Insurance Act. In particular, the Court reviewed the 1978 Supreme Court of Canada decision Regina vs.Sault Ste. Marie which addressed the categorization of offences. Applying the

definitions enunciated in this decision and otherapplicable case law, such as Regina vs. Docherty, I am of the opinion, that the language “wilfully” found in section 149(2) denotes amens rea offence. In the 1989 Supreme Court of Canada decision, Regina vs. Docherty, at paragraph 13 the word wilfully is defined; The word "wilfully" is perhaps the archetypal word to denote a mens rea requirement. It stresses intention in relation to theachievement of a purpose.

It can be contrasted with lesser forms of guilty knowledge such as "negligently" or even "recklessly".In short, the use of the word "wilfully" denotes a legislative concern for a relatively high level of mens rea requiring those ... tohave formed the intent to breach its terms and to have had that purpose in mind while doing so. Thus, the onus is upon the prosecution to prove beyond a reasonable doubt the actus reus and the mens rea of the offence.

In otherwords, the Prosecution must prove beyond a reasonable doubt that the defendant, Surinderpal Boparai, a person who is entitled tobenefits under the Workplace and Safety and Insurance Act, failed to report a material change in her circumstances related to herentitlement within ten days of the change occurring.

Recognizing that the burden rests with the prosecution and the defendant does nothave the legal or persuasive burden to prove the lack of mens rea or that the prohibited act or omission was not committed voluntarily,the defendant can avoid liability by creating reasonable doubt in the Court’s mind by presenting evidence at trial which would compelthe Court to adduce that the defendant, did not voluntarily commit the prohibited act or omission or that she lacked the mental element ofthe offence, which is requisite for the prosecution and their case. 5.

To further appreciate the element of mens rea, the Court carefully reviewed the 1994 Supreme Court of Canada decision Reginavs. Daviault where at paragraph 7, Justice Cory outlines the physical and mental elements of a criminal act; 7 For my purposes it is sufficient to say that for a great many years it has been understood that, unless the legislator providesotherwise, a crime must consist of the following elements. First, a physical element which consists of committing a prohibited act,creating a prohibited state of affairs, or omitting to do that which is required by the law.

Second, the conduct in question must bewilled; this is usually referred to as voluntariness. Some writers classify this element as part of the actus reus, others prefer toassociate it with mens rea; however, all seem to agree that it is required. (See, generally, J. C. Smith and B. Hogan, CriminalLaw (7th ed. 1992), at pp. 37 ff.) If persons other than lawyers were asked what constituted willed or voluntary conduct theywould respond that such

an act or conduct must involve a mental element. It is the mental element that is the act of will, whichmakes the act or conduct willed or voluntary. In R. v. Théroux, (SCC), [1993] 2 S.C.R. 5, at p. 17, McLachlin J.had this to say concerning the actus reus:

6. The Court also turned its mind to the 1993 Supreme Court of Canada decision, Regina vs. Theroux and Justice McLaughlin’s description of the mens rea element at paragraph 17; The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused.

Its function in criminal law is to prevent the conviction of the morally innocent -- those who do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of the prohibited actus reus. Further in the decision of Regina vs. Theroux at paragraphs 21-24 , the Court reviewed Justice McLaughlin’s comments regarding the test for the mens rea of an offence; 20 This brings us to the mens rea of fraud. What is the guilty mind of fraud? At this point, certain confusions inherent in the concept of mens rea itself become apparent.

It is useful initially to distinguish between the mental element or elements of a crime and the mens rea. The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent -- those who do not understand or intend the consequences of their acts.

Typically, mens rea is concerned with the consequences of the prohibited actus reus. Thus in the crimes of homicide, we speak of the consequences of the voluntary act -- intention to cause death, or reckless and wilfully blind persistence in conduct which one knows is likely to cause death. In other [page18] offences, such as dangerous driving, the mens rea may relate to the failure to consider the consequences of inadvertence. 21 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 is subjective. The test is not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences at least as a possibility. In applying the subjective test, the court looks to the accused'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. 22 Two collateral points must be made at this juncture. First, as Williams underlines, this inquiry has nothing to do with the accused's system of values. A person is not saved from conviction because he or she believes there is nothing wrong with what he or she is doing. The question is whether the accused subjectively appreciated that certain consequences would follow from his or her acts, not whether the accused believed the acts or their consequences to be moral.

Just as the pathological killer would not be acquitted on the mere ground that he failed to see his act as morally reprehensible, so the defrauder will not be acquitted because he believed that what he was doing was honest. 23 The second collateral point is the oft-made observation that the Crown need not, in every case, show precisely what thought was in the accused's mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference.

The fact that such an inference is made does not detract from the subjectivity of the test. 24 Having ventured these general comments on mens rea, I return to the offence of fraud. The prohibited act is deceit, falsehood, or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may, as we have seen, consist in merely placing another's property at risk.

The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete. The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence.

To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence (see Williams, supra, c. 3), the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation).

The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused's awareness that the particular acts undertaken constitute a criminal offence. 7. The Court also carefully reviewed the 1999 Supreme Court of Canada’s decision Regina vs. Stone at paragraphs 37 & 39 which

addressed the nexus between

an act of an apparent conscious individual and the voluntariness of such acts; 37. 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 relationship between voluntariness and consciousness was also addressed by Mason C.J., Brennan and McHugh JJ. in R. v. Falconer (1990), 50 A. Crim. R. 244 (Aust. H.C.), at p. 250: 39. Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that

an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily ... , the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act. From this judgment, the Court can make the inference, that

an act from an apparent conscious person is considered willed or voluntary, thus discharging them of their onus to prove the mens rea element of the defendant willing or voluntarily committing the prohibited act. Relying upon this clarification connecting an apparent conscious act of a defendant to the element of wilfulness and voluntariness enunciated in the case of Regina vs.

Stone, this Court can come to the reasonable conclusion that if Surinderpal Boparai was not in an unconscious or impaired (dissociative) state from the period between June 11 th , 2011 and June 23 rd , 2011, then the Court can infer that her acts were willed or voluntary. 8. The Court in its assessment must also critically consider the meaning of material change in circumstances . In its analysis. Although the Workplace Safety and Insurance Act does not provide a template definition to objectively assess a material change in circumstances of a worker whose receiving benefits, the Court can begin its

interpretation of the terms, by referring to Section 23 (1) & (3) of the Workplace Safety and Insurance Act which refers to a material change in circumstances ; 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.

(3) 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. Further the Court must also consider that a material change in circumstances is in connection with entitlement from benefits as found in Section 13(1) of the Workplace safety and Insurance Act which states; 13(1) 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. 9.

Further the Court in its assessment of the requirement for a worker under the Act who is in receipt of benefits to notify the Board of a material change in their circumstances, the Court turned its mind to the 2011, Ontario Court of Justice decision of the Ontario Workplace Safety and Insurance Board vs. Koomson , at paragraph 106, Justice Quon provides a listing of the various material changes in circumstances examples a worker might experience; 106 Moreover, there are many types of changes that are required to be reported to the WSIB.

For example the following are material changes that could affect an injured worker's entitlement to benefits: A change 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. Or a change 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.

Or a change 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. Further to the relevant case law and sections from the Workplace Safety and Insurance Act, the Court also considered the ordinary and grammatical meaning of the term material within the context of the Act. Turning to the Free On Line Dictionary website, which describes the term material as; “ being relevant and consequential ” The Evidence

1 0. After careful review of the relevant case law applicable to this case, sections from the Workplace Safety and insurance Act and the totality of the evidence presented during the two day trial of Surinderpal Boparai, the court is obligated to follow the three step process as out lined in R. v. W.D. First, if the court believes the evidence of the defendant then the court must acquit. Second, if the court does not believe the evidence of the defendant but is left in reasonable doubt by it, the court must acquit.

Third, even if not left in doubt by the defendant's evidence, on the basis of the evidence the court does accept, is the court satisfied of the defendant's guilt beyond a reasonable doubt? I find myself at the third prong of the credibility case which states and accept the following evidence; The defendant, Surinderpal Boparai on October 29 th , 2007, while employed as a machine operator for Royal Automotive, sustained back injuries while assisting a co-worker lift a load of product. As a result of the work related injury, her chronic back pain and subsequent depression prevented her from returning to work.

Surinderpal Boporai began receiving her benefits, October 29 th , 2007, which included loss of earnings (LOE) to cover lost wages. In March, 2011, Franceen Waxman, a twenty-one year employee of WSIB, was assigned as the case manager for Surinderpal Boporai’s file. Since she was not initially assigned to Ms. Boporai’ s file, she reviewed the file and noted that Ms. Boporai had been referred for a Progressive Goal Attainment Program (PGAP), but according to the file, made little or no progress with the program. Further, Ms. Waxman assessed the file and noted that Ms.

Borporai had very little involvement with her family, limited mobility and was housebound for the PGAP sessions. From her assessment of Surinderpal’s Boporai’s file, she requested an independent medical examination of her client, which included a psychological assessment. 11. The Court further accepts that Yvette Brown, an independent registered occupational therapist, employed by the Centre for Rehabilitation and Health Centre. The purpose of her involvement with Surinderpal Borporai, which consisted of 6/7 visits, was to assess the injury and recommend treatment for both physical and psychological matters.

Further, Yvette Brown’s goal was to assist Surinderpal Boparai reach her optimal level of functioning, emotionally, physically and psychologically. In particular, Yvette Brown notes in her February 24 th , 2001 Report (Exhibit # 4), that, the purpose of the program; “was to maximize activity involvement and minimize psychosocial obstacles to the rehabilitation process through the use of directed activities “ 12.

The Court accepts Yvette Brown’s report of February 24, 2011, in that she assessed Surinderpal Boparai and noted that her client was not an active participant in this treatment as she was difficult to engage, due to the chronic pain she was enduring, which caused her to lay down on the floor during her sessions with Ms. Brown. As part of the treatment process, goals were set for Surinderpal Boparai, such as; • Shower at least three times a week. • Walk for fifteen minutes every day outside. • Wake at 6:00am and go to bed by 9:00pm. • Wash her dinner plate in the evening.

These goals were not attained by Surinderpal Boporai and Yvette Brown notes in her report that her client was inconsistent with completing goals and demonstrated limited progress. Ms. Brown also noted that there was a slight increase in her overall activity. Surinderpal Boporai would only walk for a few minutes in her own home while in her pyjamas and when Yvette Brown attempted to address the connection between her mobility and her emotional issues, such as her anger, stress and depression, but reported Surinderpal Boporai was not interested or receptive in understanding such a link.

Included in the rehabilitation program was a session in the community, i.e. a trip to a local coffee shop, with the purpose of re-engaging Surinderpal Boporai into the community. Overall, Yvette Brown upon cessation of the PGAP program noted that Surinderpal Boporai was difficult to engage in the program and made limited progress, subsequently the program was terminated.

Further to her professional observations of Surinderpal Boporai during their sessions, Yvette Brown was privy to the surveillance evidence of her client from June 1, 2, 4, 6, 2011 and testified that Surinderpal Boporai’ s activities observed in the surveillance DVD, portrayed a different image of Surinderpal Boporai, who during her sessions was in chronic pain, limited in motion and non-engaging. 13. The Court also accepts the evidence that Franceen Waxman requested a psychological assessment of Surinderpal Boporai, which was conducted by psychiatrist, Dr.

Barry Gilbert on May 26, 2011 and reported in Exhibit # 4. Dr. Gilbert’s assessment a historical review of Ms. Borporai’s file which contained within a report from Dr. Panjwani, Surinderpal’s Borporai’s treating psychiatrist since June 2008. Dr. Gilbert summarized, Dr. Panjwani’ s assessment in his report by stating Ms. Boparai was diagnosed with a major depressive disorder, continuous single episode, severe without psychotic features and chronic pain disorder associated with both psychological factors and a general medical condition with a GAF of 40.

He noted that her pain reportedly restricted her from performing activities of daily life and she was dependent upon her mother-in-law and her children to help her. Dr. Panjwani also noted in his assessment that Ms. Boparai had apparently reached a level of medical recovery (MMR), such notations were made in his reports from Nov 15, 2010 and June 2, 2010. 14. Dr.

Gilbert reviewed all her previous reports and reviewed her present conditions and symptoms and concluded that Surinderpal Boparai reported repeated conditions of low back pain which subsequently effected both her legs, by radiating pain which is so intense in nature and that she also was experiencing pain in her neck extending into the back and top of her head, which throbs all day on most days. She also denied symptoms of mania and hypomania. Dr.

Gilbert also noted in his report of May 26 th , 2011, a typical day for Surinderpal Boparai comprised of getting out of bed between 5:00am – 9:00am, but during such times, she did not assist her children with preparations for school. She spends the rest of her day lying on the couch or sitting and occasionally eating. Her involvement with the children after school was minimal or not at all. She retires to bed from 8:00pm -10:00pm. Finally, the Court accepts Dr. Gilbert’s comments in his report of May 26 th , 2011, which summarized Surinderpal’s prognosis with respect to her future return to employment as

“poor” , due to her severe pain and lack of response to treatment. 15.

The Court further accepts that as the result of an independent surveillance assessment of Surinderpal Borporai’s activities, conducted by a private investigator, The Investigator’s Group Inc., which was contracted by the WSIB, observed the defendant, Surinderpal Boparai’ s activities on June 1,2, 4 & 6, 2011, which were activities unassisted by any professional or non-professional individuals, consisting of; driving her children to and from school, attending the bank, grocery store, retail stores, place of worship, garage sales, pumping gas for her motor vehicle, attending and sitting for forty-five minutes at a sporting event and attending a garden centre and loading ten bags of soil into the rear of her motor vehicle, unassisted.

This surveillance evidence was reviewed on June 23, 2011 by case manager, Franceen Waxman and pursuant to her jurisdiction under the Workplace Safety and Insurance Board determined Surinderpal Boparai was no longer entitled to benefits and terminated her claim June 1, 2011, the first day of surveillance and thus notified the defendant’s representative by phone of the termination. The Analysis of the Evidence 16.

A fter reviewing the relevant case law, the totality of the evidence, which included testimony from the defendant’s case worker, Franceen Waxman and her occupational therapist, Yvette Brown, the testimony of the defendant, Surinderpal Boparai, the exhibits, which included assessments and reports from the two psychiatrists, Dr. Panjwani & Dr. Gilbert and carefully reviewing the two DVD’s of surveillance of the defendant by The Investigators Group Inc. which investigated the defendant during the period of June 1, 2, 4, & 5, 2011 and after careful review of the submissions from both the prosecution, Mr.

Clarke and Defence Counsel, Miss Tejpal, the Court finds that the prosecution proved beyond a reasonable doubt the actus reas and the mens rea of the offence of section 149 (2) of the WSIB, whereby Surinderpal Boparai, failed to inform the Workplace Safety and Insurance Act within ten days of her material change in her circumstance.

This Court finds that the prosecution has demonstrated beyond a reasonable doubt, that despite the defendant Surinderpal Boparai being diagnosed with severe back injuries and depression which according to the medical authorities and the defendant’s own assessment limited her ability to perform the day to day activities of running a household, this Court finds that the defendant, Surinderpal Boparai was cognitive of a material change in her circumstances as per the surveillance evidence; which presented the defendant during the period of June 1, 2, 4, & 6, 2011.

It was clear to this Court, that Surinderpal Borporai’s activities observed from the surveillance evidence, presented a person self-sufficient, conducting numerous activities within the community, independent of any personal care worker or a family member assisting the defendant with her driving of an automobile, driving her children to school, shopping, attending temple, the bank, attending a sporting event and attending local garage sales.

The evidence clearly shows the defendant’s independent conduct in the community is inconsistent with her diagnosis, assessment and her own testimony, thus reflecting a material change in the defendant’s circumstances which has consequences with respect to her entitlement to receive WSIB benefits.

The Court also finds that the prosecution also met their onus of proving the actus reus and mens rea of the offence by proving to the court that the physical movements engaged by the defendant in the conducting of such activities were inconsistent with the expectations of an individual whose diagnosis, assessment and reports correspond to an individual who was restricted in her mobility and thus limited in her physical abilities. 17.

Recognizing that the defence has the ability to avoid liability by raising doubt in the Court’s mind by presenting evidence which can establish that Surinderpal Boparai did not voluntarily commit the prohibited act or omission and that she did not have the wilful intention for committing the offence. The defence’s attempt to diminish the prosecution’s case was two-fold ;

a) Firstly, the defence presented evidence to suggest that their client, Surinderpal Borporai’s ability to understand the English language consequently affected her capacity to comprehend the requirements of the Workplace Safety and Insurance Board and in particular, the understanding of a material change and requirement to inform the Workplace Safety and Insurance Board of a material change.

Overall, defence counsel, contends that Surinderpal Boparai could not have wilfully failed to inform the Workplace Safety and Insurance Board of a material change in her circumstances in connection with her entitlements if she did not comprehend the English language. Defence suggested to the Court that their client’s inability to understand English would impede her understanding of her obligation as per section 23 (3) of the WSIB, which imposes the defendant to inform the Board of a material change in their circumstances in connection with their entitlement to benefits.

Defence also raised the issue of the Board’s responsibility to explain such requirement.

b) Further, defence raised the issue of Surinderpal’s mental state and its effect upon her understanding of a material change in her circumstance. In other words, because of the medications which were prescribed and taken by Surinderpal Boparai combined with her depression, she was not mentally competent to identify any material change in her circumstance.

18. In reviewing the totality of the evidence, the Court found that the defendant’s attempts to diminish the prosecution’s case failed, especially with respect to the issue of a language barrier. Notwithstanding that the Court respected her Charter rights during the trial process, with the presence of a Punjabi interpreter; the issue of the defendant’s inability to comprehend the requirements of the Workplace Safety Insurance Board, especially the self-reporting obligation as per section 23(3) of the WSIB was not established.

The Court found that there was convincing evidence presented during the trial to compel this Court, especially the testimony of Yvette Brown, the occupational therapist assigned to Miss Boparai, who testified that she did not recognize any difficulties with the defendant’s ability to understand her communications with her and taking into account that Yvette Brown testified to the Court that there was a collaborative dynamic approach involved in their relationship, especially when discerning the need and requirements of an interpreter for Surinderpal Boparai and taking into account, that the defendant’s psychiatrist, Dr.

Gilbert, in Exhibit # 3, at page 422, paragraph 3, when describing Surinderpal Borporai’s mental status, referred to the defendant’s ability to comprehend English, he stated; Ms. Boparai made good eye contact and established rapport in the interview. She appeared to have a fair comprehension of English and often did not need questions translated; And taking into account, that the occupational therapist, prior to Yvette Brown’s involvement, Tamra Ellis, in her December 17 th , 2010 letter, she noted, that in her initial telephone conversation with Surinderpal Boparai spoke English well. 19.

And further considering that • The knowledge of the self-reporting obligation as per section 23 (3) of the Workplace Safety and Insurance Act is assumed in law and the defendant must only be aware of the change in circumstance in fact. • And bearing in mind the prosecution established beyond a reasonable doubt that Surinderpal Borporai’s actions observed during June 1,2, 4, 5, 2011 were different than that of her debilitating diagnosis and reports prior to such period of time. • And considering the findings of the Supreme Court of Canada decision of Regina vs. Stone, which acknowledged that

an act from an apparent conscious person is considered willed or voluntary. • And taking into account that there was no compelling evidence to suggest to this Court that Surinderpal Boparai was not in an unconscious or impaired state from the period between June 11 th , 2011 to June 23 rd , 2011, and thus her knowledge of her change in circumstance could have been communicated to the Board by herself or to her representative. 2 0. This Court found that there was compelling evidence to suggest that Yvette Brown, Dr. Gilbert, Franceen Waxman and Mr.

Dhillon exercised due diligence in establishing the defendant’s language requirements and her comprehension of the expectations set forth in the Workplace Safety and Insurance Act expectations set forth in 149(2) to report a material change. Thus the issue of the defendant’s lack of understanding of the requirements was not established by the defendant. 21. Overall, the defence attempted to establish the nexus between, Surinderpal Borporai’s ability to function actively without discomfort as observed in the surveillance video and her increased medication during this period.

This Court found there was no compelling evidence, i.e. medical documentation or viva voce evidence by a medical expert and or physician to corroborate such conclusions. Throughout the testimony of the defendant, her version of events was internally inconsistent raising concerns with respect to her credibility.

In particular, the Court found such inconsistency in the defendant’s assertion that the increased medication taken during the surveillance period improved her mobility and yet she wished the Court to accept that she was oblivious to what she was doing during such time and yet the video surveillance evidence compels this Court to accept that Surinderpal Boparai was very attentive to her surroundings, especially her day to day to activities, in particular, transactions at her bank, which require a higher prerequisite for concentration.

The issue was further presented in the defendant’s ability to recollect certain activities she conducted during the surveillance, like taking her children to school and yet was unable to recall carrying 10 bags of soil into her automobile. Her evidence could be categorized as selective and absent in consistency and trustworthiness. Further the Court turned its mind to the possibility that the defendant’s change in circumstance was possibly temporary in nature, that the defendant was completely unaware of such a material change in her circumstances and thus did not report it.

But after careful review of the assessments, the reports and testimony of the defendant herself of her condition prior to the surveillance evidence and the observances of her condition made during the surveillance period were so dissimilar that the plausibility of a constancy defence was not established. 22.

Further, • Taking into consideration the assessments and reports by the medical professionals prior to the surveillance depict an individual struggling on a daily basis of chronic pain, lack of mobility and subsequent depression, • And bearing in mind the consistency in her medications prior and after surveillance did not change, • And taking into account her reports to both Dr. Panjwani and Dr.

Thaboni, Surinderpal Boparai did not mention any significant changes in her condition before or after the period of surveillance investigation. • And further, taking into consideration, Surinderpal Borporai’s condition worsened after the surveillance, according to her communications with Dr. Panjwani.

23. This Court finds that her circumstances were not constant, but in fact did significantly changed as per the definition and the relevant case law addressing material change in circumstances, thus leaving this Court to conclude that her testimony was far from forthright or completely accurate. Conclusion 24.

After review of the totality of the evidence which included, • The evidence in chief of the prosecutions’ witnesses, Franceen Waxman, case manager at WSIB responsible for of Surinderpal Borporai’s case file and Yvette Brown, the occupational therapist and considering, • The Complete Claims File of Surinderpal Borporai (Exhibit # 3) and taking into account, • The Assessment reports from Dr. Barry Gilbert and Dr.

Panjwani, the psychiatrists (Exhibit # 4) and bearing in mind, • The surveillance DVDS of the defendant from June 1, 2, 4, & 6 th , 2011, Exhibit 1(a) & 1(b), and considering, • The viva voce evidence of Surinderpal Boparai, and • The submissions from the prosecution and defence counsel and taking into account, • The relevant case law addressing the elements of the actus reas and mens rea of the offence of section 149(2) of the Workplace Safety and Insurance Board. 25.

This Court finds that Prosecution met their onus in proving the actus reus and the mens rea of the offence of Section 149 (2) of the Workplace Safety and Insurance Act, that Surinderpal Boparai did wilfully fail to report between the period of June 11 th , 2011 and June 23 rd , 2011, in the City of Mississauga, in the Province of Ontario, to the Workplace Safety and Insurance Board a material change in her circumstances in connection with her entitlement to benefits within 10 days after the change occurred.

Further, the Court finds that the defendant worker, Surinderpal Boparai, who sustained injuries to her back in a work related incident on October 29 th , 2007, while employed to Royal Automotive as a machine operator was obliged under the Workplace and Safety Insurance Act, Sec 23 (3) to inform the Board of such a material change in her circumstances within 10 days after the material change occurred and did not.

Further the Court finds that the prosecution has proven beyond a reasonable doubt that Surinderpal Boparai knew of her material change considering the surveillance evidence which clearly indicates the defendant actively, independently and without any difficulty in physical movement, conducted such activities as driving an automobile, driving her children to school, attending a bank, her place of worship, a sporting event, shopping at a grocery store and at local garage sales. All such activities, this Court finds requires a high level of cognitive and physical competence. 26.

Recognizing the onus on the prosecution during this trial was to prove beyond a reasonable doubt, the actus reus and the mens rea of the offence, that being, that the defendant wilfully and voluntarily committed the prohibited offence. It is this Court’s finding that the prosecution proved their case beyond a reasonable doubt, that the injured worker, Surinderpal Boparai knew of the material change and intentionally did not inform the Workplace and Safety Board of such a change as is required under the Act 23(3).

This Court found that considering, Surinderpal Boparai, received an entitlement based upon her lower back injuries and subsequent depression which collectively inhibited her in performing household duties and daily functions, leaving her housebound and certainly unable to return to work, the prosecution presented compelling, credible and concise evidence which leads this Court to conclude that she experienced a material change in her circumstances which she was required was to inform the Workplace Safety and Insurance Board, in connection with her entitlements and failed to do so. 27.

Considering that Surinderpal Borporai’s reported condition indicated limited involvement with children and the surveillance evidence demonstrates the defendant driving unassisted her children to and from school. And taking into account Surinderpal Borporai’s reported condition revealed that she drove her motor vehicle rarely, occasionally driving her children to school or driving to the doctor’s office, the surveillance evidence shows that the defendant drove each day, unassisted.

Further, bearing in mind that Surinderpal Borporai’s reported condition noted that she was barely able to walk across a parking lot to a donut shop with Yvette Brown, her occupational therapist, the surveillance evidence depicts the defendant shopping and walking for extended periods of time. And considering, Surinderpal Borporai’s reported condition reveals her couch bound for most of the PGAP visits, wearing the same clothes, poor hygiene and seldom showered, the surveillance evidence clearly shows the defendant out daily, well-kept and dressed and on occasion wearing ceremonial dress.

And taking into account, Surinderpal Borporai’s reported condition depicted a person who experienced a high level of pain on a daily basis and yet the surveillance show the defendant able to load ten bags of soils into a car. And bearing in mind, the reported condition of Surinderpal Boparai, noted that she was unable to do simple household tasks, like wash her dinner plate and the surveillance evidence depicted an individual who was actively shopping for groceries, attending garage sales and attending her bank. 28.

And taking into account, that on May 25 th , 2011, a week prior, to the surveillance investigation of Surinderpal Boparai, she informed Dr. Gilbert that her typical day consisted of severe back pain, limiting her activities and leaving her housebound and bearing in mind that a month prior to the surveillance, she presented to her occupational therapist, Yvette Brown, her inability to make any major progress in the PGAP program and considering that Surinderpal Boparai indicated to Dr.

Panjwani that she was worsening in her condition, this Court finds that Surinderpal Boparai experienced a material change in her circumstances.

Clearly, her material change in circumstances was obvious in the surveillance DVD’s, and taking into account that the prosecution is not required to prove a material change in circumstance by means of a medical report or opinion, the Court finds that the method employed by the prosecution, to investigate the defendant, that being, the surveillance DVD evidence provided by the Investigators Group Inc. was sufficient to compel this Court to find that the Prosecution met its burden, proving beyond a reasonable doubt that the actus reus of the offence had been

committed and that Surinderpal Boparai had the requisite mens rea for the offence; that between the period of June 11 th , 2011 and June 23 rd , 2011, in the City of Mississauga, in the Province of Ontario, did wilfully fail to inform the Workplace Safety and Insurance Board of a material change in circumstances in connection with her entitlement to benefits within 10 days after the change occurred. ---------------------------------------------------------------- His Worship, Justice of the Peace Mark J. Curtis May 3, 2013, 1:00pm, MER Court Mississauga, Ontario.