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
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
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
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 directlyrelated to
therisks 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
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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).