Canada: Mining Companies And Occupational Disease: Regulatory Standards Are Not The Test

Last Updated: March 13 2013
Article by Josiane L'Heureux

On December 17, 2012, the Quebec Superior Court upheld a decision of the Commission des lésions professionnelles which could have far reaching consequences on companies in which employees are exposed to potentially hazardous substances. This may be so despite safety measures implemented by those companies to mitigate the effects of such exposure. In that decision, the Commission found that an employee, who had been diagnosed with lung cancer, was suffering from an "occupational disease" even though the level of contaminants to which he was exposed fell below regulatory standards.

Summary of the facts and parties' claims

This case involves an employee, Claude Fortin, who worked as an electrician for 25 years. He was employed by Iamgold – Mine Doyon for 16 years, from 1989 until 2005. Mr. Fortin worked in underground gold mines. On August 8, 2005,  he was diagnosed with lung cancer. Having led an otherwise healthy lifestyle, Mr. Fortin believed that his cancer was an occupational lung disease and made a claim thereof with the CSST on November 3, 2005.

Iamgold argued that the level of diesel emissions to which Mr. Fortin was exposed was below regulatory standards and that the mines were adequately ventilated in order to minimize health risks. Furthermore, the air quality in the mines was routinely tested to ensure compliance with health and safety standards. Therefore, his lung cancer could not have been caused by contaminants at the workplace.

However, several doctors reports found a direct correlation between Mr. Fortin's routine exposure to diesel emissions and his diagnosis of lung cancer. Certain doctors believed that because Mr. Fortin was a non-smoker, his exposure to the diesel fumes was the principal cause of his illness. Medical studies were also presented at trial and discussed the relationship between long-term exposure to diesel exhaust and the incidence of lung cancer.

Issue in dispute

The issue before the Commission was whether Mr. Fortin suffered from an "occupational disease" within the meaning of s.2 of the An Act respecting industrial accidents and occupational diseases. That is, "a disease contracted out of or in the course of work and characteristic of that work or directly related to the risks peculiar to that work".

Analysis and decision

Pursuant to s.30 of the Act, Mr. Fortin had the burden to prove that his "disease is characteristic of work he has done or is directly related to the risks peculiar to that work". Because Mr. Fortin was unable to prove the former, being the only employee at the time to be diagnosed with lung cancer, he had to prove, on a balance of probabilities, that his cancer was directly related to the risks presented at his workplace. The Commission emphasized that Mr. Fortin did not have to demonstrate with 100% certainty the cause of his cancer but he had to prove that the emissions were more likely than not its cause.

Basing its decision on numerous medical studies and opinions, the Commission held that Mr. Fortin was in fact suffering from an occupational disease. The Commission agreed that diesel exhaust is in fact a carcinogen and that long-term exposure thereto increases ones chances of developing cancer. Since Mr. Fortin had been exposed to the exhaust regularly for 25 years and was otherwise healthy, the exhaust fumes were the most likely cause of his cancer. The Superior Court refused to interfere with that decision.

Food for thought...

Of particular interest in this decision is the fact that Iamgold had taken all necessary precautions to ensure that its levels of diesel emissions fell below regulatory standards. Despite its diligence, the Commission asserted that Iamgold's compliance with health and safety standards does not speak to whether an illness is an "occupational disease" or not. The Commission further explained that workplace standards exist to diminish the likelihood that an employee might develop a pathology relating to a particular risk and that those standards are constantly evolving to keep up with scientific developments. Therefore, they cannot be relied on to determine the cause of a disease.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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