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Canada: Supreme Court Rules in Favor of Workers’ Compensation for Medical Workers with Cancer

(Aug. 1, 2016) On June 24, 2016, in a 6-1 decision, the Supreme Court of Canada ruled in favor of three medical laboratory technicians who sought workers’ compensation for the breast cancer that they claimed to have developed as a result of their occupation. The Supreme Court upheld the original decision of the Workers’ Compensation Appeal Tribunal, finding that despite a lack of scientific proof, there was enough evidence in favor of a causal link between the cancer and the occupation of the medical workers. In addition, the Supreme Court partially upheld the ruling of the British Columbia Court of Appeal, finding that the Tribunal’s power of reconsideration does not extend past the limits established by the common law. (British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority (Tribunal v. Fraser Health Authority), 2016 SCC 25, Judgments of the Supreme Court of Canada website.)

Context

The appellants, Katrina Hammer, Patricia Schmidt, and Anne MacFarlane, employees of the Fraser Health Authority, were laboratory technicians at a hospital in British Columbia. The three women were among seven technicians to develop breast cancer in a single hospital laboratory with 63 workers. Considering that the cancer was an occupational disease due to the nature of their employment, the appellants applied for compensation under the Workers’ Compensation Act. (Workers’ Compensation Act, R.S.B.C. 1996, c. 492, Queen’s Printer BC website.)

According to the reports of the Occupational Health and Safety Agency for Healthcare (OHSAH) in British Columbia and other expert evidence, the percentage of diagnoses of breast cancer in the laboratory was approximately eight times higher than in the general population. Although the experts speculated that past exposure to chemical carcinogens may have contributed to the development of breast cancer in the workers, the experts could not reach a scientific conclusion to support the causal link between the work in the laboratory and the development of breast cancer; the significant number of diagnoses could simply be a statistical anomaly and the cancer could have been caused by other non-work related factors. (Tribunal v. Fraser Health Authority, ¶¶ 9-12.)

Compensation Standard

In order to seek compensation through the Workers’ Compensation Act, which establishes a no-fault insurance scheme (§ 6), workers must be suffering from an occupational disease that is due to the nature of their employment. (Workers’ Compensation Act, R.S.B.C. 1996, c. 492.) For a disease to qualify as an occupational disease, according to the policy set out in the Workers’ Compensation Board’s Rehabilitation Services & Claims Manual, the employment has to have a causative significance in the evolution of the disease that is “more than a trivial or insignificant aspect.” (Tribunal v. Fraser Health Authority, ¶ 31.) The burden of proof imposed on the workers is quite low, with section 250(4) of the Workers’ Compensation Act stating that if the evidence for and the evidence against a certain issue concerning the compensation of a worker are of equal weight, the Tribunal must decide in favor of the worker.

Case History

Initially, the review division of the Workers’ Compensation Board refused to deem the cancer an occupational disease for all three women on the basis that there was insufficient evidence to conclude that their employment in the laboratory had played a significant role in the development of their cancer. The women appealed these decisions to the Workers’ Compensation Appeal Tribunal, which ruled in their favor. The Tribunal found that even in the absence of scientific proof, there was sufficient evidence to establish causation under the less stringent burden of proof established by the Workers’ Compensation Board. Fraser Health sought reconsideration, and the review panel upheld the Tribunal’s original decisions. (Tribunal v. Fraser Health Authority, ¶¶ 13-18.)

Judicial Review

A privative clause allows administrative tribunals to make final decisions that are not subject to judicial review on certain matters. Under section 58(2) a) of the Administrative Tribunals Act, in the presence of a privative clause, a court in a judicial review proceeding may only interfere with the Tribunal’s decision if there is a finding of fact or law that is patently unreasonable. (Administrative Tribunals Act, S.B.C. 2004, c. 45, Queen’s Printer BC website.) Because the Workers’ Compensation Act contains a privative clause and the issue of causation at hand pertains to a question of a finding of fact, in a judicial review the reviewing court must show the utmost deference towards the administrative decision maker’s original decision. (Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2013 BCSC 524, ¶¶ 9-11, Canadian Legal Information Institute (CANLII) website.)

The standard of review that applied to the Tribunal’s original decisions was the standard of “patent unreasonableness,” whereas the standard of review that applied to the reconsideration decisions was the standard of correctness. If an original decision is judged to be patently unreasonable by a court, the reconsideration decision that confirms such a decision is incorrect. (Id. ¶ 9.)

Upon judicial review, since the three original decisions and the three reconsideration decisions were substantially identical, the three women agreed to proceed with the hearing on the Tribunal’s decisions concerning Hammer on the basis that the outcome of that case would govern the results of the other cases. (Id. ¶ 8; WCAT-2010-03503, the Workers’ Compensation Appeal Tribunal (WCAT) website; WCAT-2011-03079, WCAT website.)

The British Columbia Supreme Court Ruling

The British Columbia Supreme Court set aside both Tribunal decisions on the basis that the original decision was patently unreasonable because it did not follow the evidence prepared by the experts and the reconsideration decision was therefore incorrect. (Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, ¶ 49.) )

The workers appealed this decision to the British Columbia Court of Appeal, which upheld the ruling of the inferior court. (Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, CANLII website.) In addition, the Court of Appeal nullified the Tribunal’s reconsideration decision. The majority of the Court of Appeal ruled that section 253.1(5) of the Workers Compensation Act, which authorizes reconsideration on the basis of “curing a jurisdictional defect,” could not be interpreted as extending the Tribunal’s power of reconsideration to include identifying and correcting patently unreasonable errors. (Tribunal v. Fraser Health Authority, ¶¶ 21-25.)

The Supreme Court of Canada’s Ruling

Following the ruling of the British Columbia Court of Appeal, two appeals were brought to the Supreme Court of Canada, the Tribunal appealed on the issue of the limits on its power in reopening cases for reconsideration, while the workers called upon the Supreme Court to determine whether the Tribunal had erred in its approach to factual causation.

  • Tribunal Appeal

The Supreme Court unanimously upheld the decision of the British Columbia Court of Appeal on the power of reconsideration of the Tribunal.  At this level, Fraser Health concurred with the Court of Appeal, considering that the extent of the power of reconsideration of the Tribunal is limited by the common law power of reopening a proceeding to complete its statutory task. (Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, Judgments of the Supreme Court of Canada website.) A tribunal may not reopen and reconsider its own decision simply because it has “changed its mind, made an error within jurisdiction or because there has been a change of circumstances.” (Id.)

The Supreme Court did not see a reason to interfere with the decision of the Court of Appeal in light of the position taken by Fraser Health. Refuting the Tribunal’s claims, the justices upheld that section 253.1(5) of the Workers’ Compensation Act does not authorize the Tribunal, in its reconsideration, to act like a court of judicial review and correct patently unreasonable errors. (Tribunal v. Fraser Health Authority, ¶¶ 26-28.)

  • Workers’ Appeal

The Supreme Court, with Justice Côté dissenting, overturned the decision of the British Columbia Court of Appeal on the issue of causation: the majority upheld the original decision of the Tribunal that found that despite the lack of scientific proof, there was sufficient evidence to establish a causal link between the workers’ employment and the cancer. Consequently, the cancer could qualify as an occupational illness and the workers could seek compensation. (Tribunal v. Fraser Health Authority, ¶¶ 38-39.)

According to the Supreme Court, “in relying upon the inconclusive quality of the OHSAH reports’ findings as determinative of whether a causal link was established between the workers’ breast cancers and their employment, the chambers judge and the majority of the Court of Appeal erred in law.” (Id. ¶ 32.) Although the OHSAH reports were inconclusive in drawing a causal link between the workers’ employment and the cancer, the reports “confirmed a ‘statistically significant cluster’ of breast cancer, with a standard incidence ratio approximately eight times the rate of breast cancer in the general population; and … noted that past occupational chemical exposures were likely ‘much higher’ than current exposures, and included one known carcinogen … .” (Id. ¶ 34.) Furthermore, the Workers’ Compensation Act imposes upon the workers a burden of proof that is much less stringent than scientific standards. (Id. ¶ 31.)

In light of this, the Supreme Court held that the Tribunal’s finding that the significant cluster of breast cancer was more likely due to an occupational illness rather than simply being a statistical anomaly was not patently unreasonable.  The Court upheld the Tribunal’s original decision, ruling that the Tribunal did not err in qualifying the breast cancer as an occupational disease. As a result, the workers could seek compensation for their breast cancer. (Id. ¶¶ 29-39.)

Prepared by Cynthia Chen, Law Library Intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.