Fraser Health concerned three technicians at a hospital
laboratory who were diagnosed with breast cancer. The workers made
a claim under the B.C. Workers Compensation Act on the
basis that their cancer was an occupational disease. During the
process, WorkSafeBC considered three expert reports. One report was
prepared by the Occupational Health and Safety Agency for Health
Care in British Columbia regarding the incidence of cancer in the
laboratory where the workers were employed. The other two reports
were prepared by doctors specializing in occupational medicine.
Each of the reports' conclusions were substantially similar:
the experts were unable to conclude there was a definitive link
between the technicians' jobs and their disease. As a result,
WorkSafeBC denied the claims.
The technicians appealed to the Workers' Compensation Appeal
Tribunal ("WCAT") and were successful. WCAT found that
while the expert reports could not conclusively link the
workers' cancer to their jobs, this would not preclude a
successful claim. Compensation for occupational diseases requires
the application of a lower standard than scientific certainty: as
long as there is some "positive evidence" to suggest a
link between a worker's disease and his or her employment, this
is sufficient. Applying that principle to the facts, WCAT noted two
kinds of positive evidence:
the disproportionate rate of cancer among the technicians
(eight times the average of the general population); and
the closeness in time between the workers' employment and
the onset of their disease.
Taken together, WCAT held these facts were enough for it to draw
a "common sense" inference that the workers'
employment caused the cancer. WCAT held that the technicians were
eligible for compensation.
The Supreme Court of British Columbia reviewed the WCAT
decision. The Court noted that in these instances, under the B.C.
Administrative Tribunals Act, the standard of review to be
applied is whether the WCAT decision was "patently
unreasonable". The Court found there was no evidence capable
of supporting WCAT's conclusion that the workers'
employment caused the cancer. WCAT ignored the expert evidence in
favour of its own expertise and its decision was therefore patently
unreasonable. The Court set aside the decision and remitted the
matter back to WCAT.
The B.C. Court of Appeal denied the workers' appeal and the
matter came before the Supreme Court of Canada ("SCC").
The SCC focused on two major issues at the heart of the case. The
first was the applicable standard of review: "patent
unreasonableness." This standard, the SCC held, means that a
tribunal's decision should be overturned only when there is no
evidence capable of supporting it. In other words, as long as the
decision falls within a range of possible outcomes, a
court should let it stand.
The second issue was whether WCAT's decision was patently
unreasonable. In order to make this determination, the SCC
considered the standard of causation in occupational disease cases.
In B.C., a worker's employment need only be of some
"causative significance" or "more than a trivial or
insignificant aspect" in the development of the disease. In
other words, the employment does not need to be the cause
of the disease, but only a cause. Although the expert
reports were inconclusive, they did not rule out the possibility of
a link between the cancer and the employment. As WCAT noted, the
cancer rate among the workers was statistically higher than the
average, and the closeness in time between the workers'
employment and their diagnoses suggested it was possible that their
employment caused the disease. The WCAT decision fell within a
range of possible outcomes and thus the decision could not be
considered patently unreasonable. The workers' appeal was
successful and the WCAT decision was restored.
In order to be compensable in B.C., a worker only needs to
demonstrate that her or his employment was more than a trivial
aspect of the injury or disease and where the evidence weighs
evenly, the law requires WorkSafeBC to rule in favour of the
worker. While this is not new, the SCC appears to have expanded
that principle to allow WCAT to draw its own "common
sense" inferences in the absence of scientific proof. This is
surprising given the vital role that expert medical evidence has
traditionally played in workers' compensation decisions. This
case also serves as an important reminder of the very high level of
deference afforded to administrative tribunals by courts, which one
judge described as "the right to be wrong."
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