Numéro de sentence arbitrale 11-013

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Award Date:	2011-08-11
Arbitre:	Shime, O. Voir les prix par Shime, O.
Municipalité:	Toronto Voir les prix а partir de Toronto
Région:	Central Voir les prix а partir de Central
Classifications:	Benefits, Disability, Evidence, Evidence, Evidence, Res Judicata
Plaignant:	City of Toronto Police Services Board
Comparutions:	B. Symes, pour l'Association M. Hines, pour l'employeur
Longueur:	55 pp
Référence conventions collective
Référence législative	Workplace Safety and Insurance Act, ss. 23 & 149 Police Services Act Bankruptcy and Insolvency Act R.S.C. 1985, C.B.3, s. 178(1)(e)

Sommaire

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Benefits   Repayment - Uniform members - Employer grievance seeking recovery of overpayment from former police officer, TR - Basis of claim that TR in receipt of WSIB benefits and top up/sick benefits while she attended university and teachers’ college - WSIB determined TR not entitled to benefits - Appeal from decision dismissed by appeals tribunal, WSIAT - Arbitrator bound by WSIAT decision - Arbitrator independently arriving at same conclusion - Employer entitled to recovery of overpayment - Grievance allowed.

Disability   Uniform members - Employer grievance seeking recovery of overpayment from former police officer, TR - TR received WSIB benefits and top up/sick leave for Post Traumatic Stress Disorder (PTSD), alleged to have been aggravated by her involvement in work-related motor vehicle accidents - WSIB determined TR not entitled to benefits when it learned she had been attending university and teachers’ college - WSIAT concluded TR’s PTSD was minimal and did not prevent her from returning to work on modified basis - Medical evidence supporting WSIAT’s conclusion - Grievance allowed.

Evidence   Credibility of witnesses - Uniform members - Employer grievance seeking recovery of overpayment from former police officer, TR - TR obtained WSIB benefits and top up/sick leave for PTSD while she was attending university and teachers’ college - TR not credible - TR attempted to conceal her attendance at teachers’ college for fear of losing her benefits - Conduct fraudulent and deceitful - Grievance allowed.

Evidence   Similar fact evidence - Uniform members - Employer grievance seeking recovery of overpayment from former police officer, TR - Employer’s position that TR obtained benefits fraudulently by claiming she was totally incapacitated by PTSD - TR had prior conviction for insurance fraud in which she suppressed her attendance at university in order to obtain benefits - Pattern of resemblance with TR’s claim in this case against employer and WSIB - Prior conviction for insurance fraud negatively reflecting on TR’s credibility - Grievance allowed.

Evidence   Privilege - Uniform members - Employer grievance seeking recovery of overpayment from former police officer, TR - Whether communications between TR and association representative shielded by privilege - Association representative did not testify and negative inference drawn from that failure - Association representative gave false information to WSIB - Source of false information was TR - Fraudulent public assertions not protected by privilege.

Res Judicata   Uniform members - Employer grievance seeking recovery of overpayment from former police officer, TR - Workplace Safety and Insurance Appeals Tribunal (WSIAT) upheld WSIB’s determination that TR not entitled to benefits because she was capable of performing modified work - WSIAT also found TR’s disability resulted in part from her pattern of lying and deceit - Arbitrator bound by WSIAT decision - All issues before arbitrator, including issue of fraud, properly determined by WSIAT - Independent assessment of the evidence leading arbitrator to same conclusion as that reached by WSIAT.

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Réalités

The employer sought an order requiring TR, a former police officer, to repay an overpayment of compensation benefits that she obtained in the form of Workplace Safety and Insurance Board (WSIB) benefits, top up and sick benefits from December 11, 2001 forward. The employer’s position was that TR was not entitled to the benefits because she attended university and college while receiving them, at a time when modified work was available for her which she could have performed. The WSIB determined that TR was not entitled to benefits because she failed to notify WSIB of a material change in her circumstances, namely that she was attending university and teachers’ college. That determination was upheld by the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The employer’s original claim was for $116,636.26; however the WSIB reimbursed the employer for $71,764.87, leaving an outstanding claim of $44, 871.39. The parties agreed that they were bound by WSIAT’s decision. TR filed an assignment in bankruptcy in 2005 and was discharged from bankruptcy in 2006. Although discharge from bankruptcy normally released the bankrupt from debts and liabilities, the employer relied on the exception found in s. 178(e) of the Bankruptcy and Insolvency Act, which stated: 178(1) An order of discharge does not release the bankrupt from (e) any debt or liability for obtaining property by false pretences or fraudulent misrepresentation. TR joined the Toronto Police Service in 1995. In March 1998 she was arrested for shoplifting. Criminal charges were not pursued but TR was convicted of discreditable conduct under the Police Services Act and was reprimanded. TR claimed that a series of accidents in which she and others were involved caused her emotional distress. She consulted both her doctor and a clinical psychologist. TR’s family doctor referred her to a psychiatrist. TR’s family doctor completed a WSIB form on TR’s behalf, diagnosing TR as having “severe depression”. The family doctor first noted a diagnosis of Post Traumatic Stress Disorder in December 2000. In the meantime, TR was involved in two other incidents of shoplifting, for which she faced criminal charges and Police Services Act charges. TR was also charged with a number of counts of discreditable conduct arising out of her work performance. In August 2001 TR was cleared to return to work by a WSIB psychiatrist. TR met with the employer’s medical advisor and an association representative. On December 4, 2001 the employer offered a position in fleet management, to which TR did not respond because she felt it was inappropriate, in accordance with her theory that motor vehicle accidents were a trigger for her PTSD. She made no effort to seek other modified employment with the TPS and as a result her WSIB benefits were terminated as of December 10, 2001. When TR joined the TPS she already had a degree in political science. In January 2002 TR enrolled in two courses at Trent University. In the fall of 2002 she began a full-time program at teachers’ college, York University, receiving her B.Ed in 2003. In September 2004 TR obtained a full-time teaching position. TR appealed the decision to terminate her WSIB benefits. Based on CAMH assessments, which diagnosed her as having major depressive disorder, eating disorder and PTSD, TR was granted WSIB benefits retroactive to December 11, 2001. However, in September 2003 a WSIB claims adjudicator learned that TR had been undertaking educational courses. He contacted her and she told him she had completed her B.Ed and was taking a special education course at York. The adjudicator informed TR that her full-time studies constituted a significant material change in her circumstances, information which she had failed to convey to the WSIB, contrary to her obligations under s. 23(3) of the Workplace Safety and Insurance Act. The WSIB decided that TR was not totally disabled from December 11, 2001 onwards. TR’s benefits were inactivated. She appealed that decision to WSIAT, which dismissed her appeal on March 27, 2007. The parties agreed that the arbitrator was bound by the WSIAT decision and that there was an overpayment of benefits. The issue before the arbitrator was whether the overpayment was recoverable, in light of s. 178(1)(e) of the Bankruptcy and Insolvency Act - that is, whether TR obtained benefits by “false pretences or fraudulent misrepresentation”.

Argument

The employer argued that TR obtained benefits by fraud and deceit. Counsel for TR and the association argued that TR suffered from a multiplicity of illnesses, had no intention to misrepresent her situation to the WSIB, was disabled from working by mental illness, was unable to return to policing in any capacity, and was thus entitled to sick benefits.

# de sentence arbirale

The arbitrator acknowledged that he was bound by the WSIAT decision, and, on an independent review of the evidence, he reached the same conclusion - namely, that TR was not entitled to benefits, and further, that she had fraudulently obtained those benefits while attending university/teachers’ college, at a time when work was available at the TPS which she could have performed. The medical evidence from the WSIB doctors, from the TPS advisor, and ultimately from TR’s own doctors, all supported this conclusion. TR’s doctors were surprised to learn that TR had attended university because this was inconsistent with her self-reporting. The arbitrator found that TR’s self-reporting was selective and exaggerated. He found that the theory as to the source of TR’s PTSD - the motor vehicle accidents - was contradicted by the evidence. In his view, TR’s family doctor was unduly influenced by the association representative’s letter in that respect. Consequently, the medical evidence supported the conclusion that TR could have returned to modified work which was available other than at 42 Division (her last assignment) or the police garage. It was clear that TR did not want to return to policing and did not advise TPS of her change in circumstances because she knew that to do so would jeopardize her benefits. It was apparent from the medical evidence that although TR did have PTSD it was “minimal” and she was capable of returning to modified work as of December 11, 2001. Instead, she chose to attend university and teachers’ college. Her claiming of benefits was therefore wrongful and fraudulent. TR was not a credible witness. Several factors buttressed this conclusion: In August 2000 she submitted a false application for employment to the York Regional Police, in which she checked “no” in response to the question of whether she had ever been convicted of a provincial offence, which would include her conviction under the Police Services Act. In addition, she falsified a disability claim with Clarica Life Insurance Company in which she responded “no” to the question of whether she was currently participating in any educational courses. She also claimed she had a “reading limitation” due to limited concentration capacity. TR was convicted of fraud for submitting false claims to Clarica, for which she received a conditional discharge. Her conduct in that matter resembled her conduct in this case: both were fraudulent claims against an insurance fund and in both she suppressed her attendance at university. The prior conviction for insurance fraud was similar fact evidence which was legally relevant and of probative value; and it reflected on TR’s credibility in a negative way. TR was not motivated to return to work with the TPS. Instead, she sought another occupation and sought funding via WSIB benefits while returning to school. The totality of her conduct constituted fraud, which included both overt conduct and her “cunning silence” - that is, her deliberate concealing of her attendance at school. The association representative’s letter to a WSIB adjudicator was an example of overt conduct. As a result of false representations made on TR’s behalf, she obtained benefits. The association representative did not testify, and the arbitrator drew a negative inference from this, concluding that his testimony would have implicated TR as the source of the false information. Counsel for TR objected to revealing evidence of any communications between TR and the association representative, claiming privilege attached to such communications. The arbitrator accepted that communications with counsel/representatives in a collective bargaining context may be privileged. However, he found that privilege did not shield these communications from disclosure because they were based on fraudulent statements; and privilege did not attach to fraudulent public assertions. These conclusions were consistent with the WSIAT decision. WSIAT did not accept that TR was totally disabled and concluded that her allegation of total disability resulted in part from her pattern of lying and deceit. Given those findings, s. 178(1)(e) of the Bankruptcy and Insolvency Act applied, so that her discharge from bankruptcy did not erase the debt owing. Accordingly, TR was liable to the employer for WSIB benefits and sick bank benefits paid to her after December 11, 2001, excluding amounts paid when she was legitimately ill – viz. a period of admission to Homewood and attendance at an eating disorder clinic. Grievance allowed.

Autorités cité

• Mood Music Publishing Co. Ltd. v. De Wolfe Ltd. [1976] All ER 763 (C.A.) • Tapp v. Lee (1803), 3 Bos. & P. 367, 127 E.R. 200 • Freeman v. Pearlman (1999), 169 D.L.R. (4th) 133 (B.C.C.A.) • Nippon Photo Ltd. v. Okusabo, 110 A.C.W.S. (3d) 635 (B.C.S.C.) • Dictionary of Canadian Law, “deceit” • Re Horowitz (1984), 52 C.B.R. (N.S.) 102, aff’d, (1985), 53 C.B.R. (N.S.) 275 (O.C.A.) ** This award has been selected for publication in Labour Arbitration Cases.

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