Highlights of Noteworthy Decisions

Decision 1002 16
R. McCutcheon - J. Blogg - C. Salama
  • Abuse of process
  • Evidence (surveillance)
  • Evidence (weight) (court conviction)
  • Fraud
  • Benefits (reduction or suspension) (material change in circumstances)

The worker was struck in the stomach by a conveyor in June 2006. The Board granted the worker a 35% NEL award for psychotraumatic disability. After reviewing video surveillance evidence, the Board discontinued LOE benefits as of December 2011 and revoked the NEL award for psychotraumatic disability. The worker appealed.

The worker was charged under s. 149(2) of the WSIA with failing to report a material change in circumstances. She was convicted of the charge and ordered to pay a fine of $7,000.
The Panel considered whether this appeal was an abuse of process.
The Board provided the surveillance evidence to a psychiatrist who had previously assessed the worker in October 2011. Based on the surveillance evidence and the opinion of the psychiatrist, the Board found that the surveillance evidence showed the worker engaging in activities that were inconsistent with medical reports describing an overwhelming level of incapacity.
The decision of the Court also considered the surveillance evidence, the report of the Board's psychiatrist and the report of the worker's treating psychiatrist. The Court preferred the evidence of the independent report of the psychiatrist retained by the Board. The Court found that the surveillance evidence depicted a more true reflection of the worker's abilities and symptoms than anything reported by her as required by the Act.
Section 149(2) provides that a person is guilty of an offence for failing to inform the Board of a material change in circumstances with the person's entitlement to benefits within 10 days after the change occurs. Board Operational Policy Manual, Document No. 22-01-02, on material change in circumstances, defines a material change in circumstances as any change that affects a person's entitlement to benefits and services under the Act.
The Supreme Court of Canada has affirmed that the doctrine of abuse of process is applied to preclude re-litigation in circumstances where the strict requirements of issue estoppel are not met but where allowing the litigation to proceed would, none the less, violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.
Tribunal decisions have found that a conviction under s. 149(2) is akin to a criminal conviction. The Tribunal has applied the doctrine of abuse of process, given full effect to convictions under s. 149(2) and found that such a conviction cannot be re-litigated. Further, the Tribunal must abide not only by the outcome of the criminal proceeding but also the underlying findings of fact essential to the outcome.
The worker was essentially re-litigating the same dispute. The issues of ongoing LOE benefits and permanent impairment are essentially the same and turn directly on the same evidence and arguments as were put before the Court on the charge under s. 149(2).
The doctrine of abuse of process requires examination of the substance underlying the issues in the two proceedings, rather than a superficial and technical comparison. The only way to allow this appeal would be to interpret the same evidence put before the Court in a different way, thereby rejecting the underlying factual findings of the Court conviction.
The Panel concluded that this appeal was an abuse of process. The appeal was dismissed.