Cancer cluster is found at a hospital in B.C.; unions fight at the highest level to show causation.
Vancouver (20 April 2016) — Katrina Hammer and Anne MacFarlane, members of Health Sciences Association of BC (HSABC/NUPGE) and Patricia Schmidt, a former member of the Hospital Employees' Union (HEU), all worked in the laboratory at Mission Memorial Hospital. All three contracted breast cancer, and an investigation into the cancer identified there was a cancer cluster in the laboratory — where the incidence of breast cancer was 8 times the rate of breast cancer in B.C.
Their claims to WorkSafe BC for compensation for breast cancer as an occupational disease were initially denied in each case, but the BC Workers' Compensation Appeal Tribunal (WCAT) reconsidered the decisions, and allowed the claims. WCAT reviewed all of the evidence before it, including expert reports that did not rule out occupational factors as a contributor to the cancer. It found that the evidence was "sufficient to conclude it was as likely as not that some workplace exposure was of causative significance."
Fraser Health Authority, the employer, judicially reviewed the WCAT award and the Supreme Court of B.C. and the B.C. Court of Appeal sided with Fraser Health Authority, stating there was no evidence of work causation.
HSABC/NUPGE fights back
HSABC/NUPGE sought, and received, leave from the Supreme Court of Canada to appeal the B.C. court decisions on the basis that the courts applied the wrong standard in their review of the WCAT decisions, and wrongly found that there was "no evidence" on which WCAT could have based its decision.
Tonie Beharrell and Randy Noonan, lawyrers for HSABC/NUPGE, and HEU's lawyer Kaity Cooper appeared in the Supreme Court of Canada on January 14 to challenge the decision of the Supreme Court of B.C. and the B.C. Court of Appeal to overturn the WCAT decision.
Do courts have the right to dismiss expertise and reweigh evidence?
At issue is the role and authority of administrative tribunals like the WCAT, which have specialized expertise in their particular area, and whether the courts ought to be able to dismiss that expertise and reweigh the evidence that was before the Tribunal.
In its submission to the Supreme Court of Canada, HSABC/NUPGE argued that
"As noted by the original panel, the scientists and physicians were weighing the evidence against the standard required to reach "scientific conclusions" based on "scientific evidence." That is a significantly higher test than that required in the administration of the workers' compensation scheme for the adjudication of workplace disease claims, and in fact requiring the Appellants to meet that test would fundamentally undermine the purpose of that scheme."
Jeanne Meyers, HSABC's Executive Director of Labour Relations and Legal Services, said HSABC/NUPGE's decision to pursue the case to the highest court in Canada was taken to support not just the members from Mission Memorial Hospital, but to uphold the integrity of the Workers' Compensation system, based on a historic compromise where employees gave up the right to sue employers, and in exchange employers provide a no-fault insurance scheme.
The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 360,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE