“Supreme Court finds in favour of medical workers who claim cancer caused by workplace” / (Toronto Star, Jun. 24, 2016)
In a 6-1 decision (2016 SCC 25) released Friday, the top court upheld BC Workers Compensation Appeals Tribunal 2010 and 2011 rulings on occupational disease claims originally denied three laboratory workers. The workers, employed by a hospital in Mission, were among 7 at the same laboratory who developed breast cancer. A subsequent challenge at the BC Court of Appeal (2014 BCCA 499) overturned the Tribunal finding of a link between the cancer and the workplace.
The positions of ONIWG & IAVGO
At stake were issues of causation and Tribunal jurisdiction fundamental to Canada’s workers’ compensation systems. Interveners Ontario Network of Injured Workers’ Groups (ONIWG) and Industrial Accident Victims’ Group of Ontario (IAVGO) legal clinic held that if the Supreme Court were to affirm the Court of Appeal decision, it would upend a longstanding approach to determining causation and require workers’ compensation tribunals to deny claims where there is no conclusive medical or scientific evidence.
In their factum [read full submission] IAVGO and ONIWG argued that scientific certainty is not required (and in fact definitive scientific evidence on work-related causation rarely exists). Decisions must be made not by scientists, but by expert legal tribunals applying legal principles; they should be based on the best available evidence and the balance of probabilities standard established under workers’ compensation legislation, which states that in cases where the weight of disputed evidence is evenly balanced it should be decided in favour of the worker. The submission argued also that increasing the standard of proof to a restrictive scientific certainty would undermine the legislative goals of workers’ compensation which are to shift the burden of occupational injury or disease off workers by compensation; promote health and safety; and aid rehabilitation into the workforce and community.
This standard (of scientific certainty) is wholly inapplicable to determining causation in the workers’ claim.”
Justice Russell Brown wrote in the Supreme Court decision that the Workers’ Compensation Act sets a lower burden of proof than the civil standard required by the courts and confirmed that that where the evidence is evenly weighted on an issue, the finding must favour the worker.
The Court ruled that “causation can be inferred — even in the face of inconclusive or contrary expert evidence — from other evidence, including merely circumstantial evidence”, and that the task of weighing evidence rests with the Tribunal. As intended under the B.C. workers’ compensation legislation (s. 254 of the Act), on appeals from decisions of the Board, the Tribunal has exclusive jurisdiction to determine all questions of fact. While it may choose to draw from the expert evidence put before it, the decision remains the Tribunal’s to make…
- MacKinnon, Leslie. 2016 Jun 24. “Supreme Court Rules that Worker’s Compensation Not Dependent on Scientific Certainty.” iPolitics.ca (blog)
- Ison, Terence. G. 2008. “Statistical Significance and the Distraction of Scientific Proof.” Canadian Bar Review 87: 119-159