Major Win for Injured Workers

The Supreme Court of Canada ruled 7-1 Friday that workers who become ill due to a possibly toxic workplace don’t need to prove their case with scientific certainty in order to collect workers’ compensation benefits.

Kristina Hammer, Patricia Schmidt and Anne MacFarlane are three of seven lab technicians out of a total of 63 who developed breast cancer after working at a Mission B.C. hospital over a 20 year period. Their cancers occurred at a rate 8 times higher than in the normal population.

The women blamed their work environment which, especially early in their careers, meant working with solvents and reagents containing known carcinogens. Until 1994 the air intake vent of their lab was near the hospital incinerator that burned medical waste containing plastics and chemicals.

Claiming their high incidence of breast cancer, known as a “cancer cluster”, was an “occupational disease”, the women applied for compensation under the province’s workers’ compensation insurance program. They were turned down, but they appealed to the Workers’ Compensation Appeal Tribunal and won.

But the Fraser Health Authority that oversees the Mission hospital fought back, and took the case out of the workers’ comp arena into the courts, asking for a judicial review.

A lower court judge in B.C. found “no evidence” the women’s breast cancer was caused by the lab, and the B.C. Court of Appeal, in a 3-2 split decision, agreed there was some causative evidence but ruled “something more was required.”

The legal question asked by the women before the nation’s top court is whether they needed expert evidence to prove their cancers were caused by the workplace.
The top court answered they did not. Justice Russell Brown, writing for the majority, said, “Causation can be inferred — even in the face of inconclusive or contrary expert evidence — from other evidence, including merely circumstantial evidence.”

Workers covered by workers’ compensation do not need to establish causation on a balance of probabilities, as would be required in a civil court, Brown continued.

“The workplace need only be of causative significance or more than a trivial or insignificant aspect in the development of the a worker’s illness,” he said.

His reasoning looks back to the foundation of the workers’ compensation system, which was set up as a “historic compromise” that sees workers giving up the right to sue their employers over workplace injuries in exchange for no-fault compensation.
If the evidence is evenly weighed but not conclusive, the issue is supposed to be resolved in favour of the workers.

The three women had argued that the majority decision by the three judges on the B.C. Court of Appeal court imposed a new standard of proof: one of scientific certainty. This “would make it virtually impossible for women to be compensated for occupationally induced cancer, thereby frustrating the purpose of the workers’ compensation scheme,” their factum filed with the top court says.

The top court agreed with them, with Brown writing, “This standard (of scientific certainty) is wholly inapplicable to determining causation in the workers’ claim.”
On the opposing side, the Fraser Health Authority that argued a favourable decision for the women could result in any employee who develops cancer demanding compensation. It pointed out that Hammer had other risk factors: she had never given birth and her periods started before she was 13.

The top court said not every employee who develops cancer can blame it on the workplace.

“This does not mean that evidence of relevant historical exposures followed by a statistically significant cluster of cases will, on its own, always suffice to support a finding that a worker’s breast cancer was caused by an occupational disease. It does mean, however, that it may suffice,” the court said.

An intervener in the case, a group representing injured workers and victims of industrial accidents, said requiring scientific certainty meant workers waited decades before being able to receive compensation for handling asbestos even though private insurance companies had already stopped covering such employees because it was known asbestos was dangerous.

Justice Suzanne Côté, in a strong dissension, declared the majority court’s decision Friday could lead to a “wilderness of mere speculation or conjecture” about causes of illness. “There is not evidence – and certainly no positive evidence – capable of supporting a finding of causative significance,” she wrote.