Michael J. Fox is a well-known Canadian comedic actor probably
best known for the "Back to the Future" movie trilogy and
other successful small screen comedies. In medical circles, he is
also known for having Parkinson's disease and as a spokesperson
for Parkinson's disease research. But Michael's
Parkinson's is a little different. He was a member of a British
Columbia production crew in the 1970's. Several of that crew
went on to develop Parkinsons at a young age. The statistical
probability of a number of persons, or a cluster, in the one
production crew developing Parkinson's was very small. Clusters
"suggest" an environmental agent at work – whether
it is scientifically provable or not.
In British Columbia (Workers' Compensation Appeal
Tribunal) v. Fraser Health Authority,  SCC 25
(hereinafter "WCAT 2016") the Supreme
Court of Canada was asked to look at causation in the context of a
cluster of seven British Columbia medical technicians who developed
breast cancer while working at the same hospital laboratory. Three
of the seven workers applied for worker compensation benefits.
A Compensation review officer denied the claim for benefits.
Medical experts who reviewed the case had concluded there was
insufficient evidence to sufficiently link breast cancer to
laboratory work. The workers appealed to the Workers'
Compensation Appeal Tribunal and it found that the breast cancers
were occupationally caused diseases in this case. The employer then
applied for judicial review and the Workers' Compensation
Appeal Tribunal decision was overturned. An appeal to the British
Columbia Court of Appeal by the 3 workers was not successful. The
workers appealed to the Supreme Court of Canada (the
In a split decision of the Court, the majority highlighted the
distinction between causation under workers' compensation law
and causation under tort law. Under workers' compensation law
where evidence is evenly weighted on causation, causation is
resolved in the workers' favour. Under tort law, evenly
weighted causation evidence results in failure of a worker or
plaintiff's claim. However, the Court also noted that the
'causation' distinction was not determinative in this
The majority stated at paragraph 33 that the Courts below had
fundamentally misapprehended how causation, "irrespective
of the standard of proof – may be inferred from the
evidence." Going back to first principles, the majority
restated at paragraph 38 that:
"The presence or absence of opinion evidence positing
(or refuting) a causal link is not, therefore, determinative of
causation... It is open to the trier of fact to consider, as this
Tribunal considered, other evidence in determining whether it
supported an inference that the workers' breast cancers were
caused by their employment..."
The majority of the Court then went one step further to tacitly
endorse what might be considered an expansion of defined
occupational disease in the context of causation, work-related
illness, and possibly tort law:
"Howsoever "positive evidence" was intended
to be understood in those [cited] decisions, it should not
obscure the fact that causation can be inferred – even in the
face of inconclusive or contrary expert evidence – from other
evidence, including merely circumstantial evidence. This does not
mean that evidence of relevant historical exposure 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
WCAT 2016 will likely become one of the more
frequently cited cases on causation generally and in the
context of occupational disease. It seemingly opens the door a
little wider – and to a broader definition of occupational
disease based on statistical inference and medical case clusters.
Medical clusters were once the bailiwick of epidemiologists –
who now may become the Court's experts of tomorrow in many
potential class action lawsuits. And, "Getting
Back to the Future", Michael J Fox might just
have a case...
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It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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