Canadian Lawyer - sample

w w w . C A N A D I A N L a w y e r m a g . c o m S E P T E M B E R 2 0 1 6 39 he Supreme Court of Canada has clarified the causation test to be met for workers' compensation claims in a 6-1 decision issued this summer involving a lengthy legal dispute related to hospital lab technicians who contracted breast cancer. At the same time, some aspects of the June 24 ruling in British Columbia (Workers' Compensation Appeal Tri- bunal v. Fraser Health Authority), are sparking discussion about whether the decision will also impact the causation test in related areas of the law. The Supreme Court has appeared to endorse the right of provinces to enact statutes that set out the level of deference that must be shown to tri- bunals, stressed that decision-makers can assess how much to make of expert opinion and potentially made it easier to show causation related to an injury or illness. Whether or not there are broader applications coming out of the ruling, lawyers who act for workers' compen- sation claimants are satisfied with the specific outcome in this case. If lower court decisions had been allowed to stand, they say it would have unfairly raised the bar for employees seeking to show that an illness was at least in part workplace related. "The presence or absence of expert evidence is not dispositive. You have to look at all the facts," says Tonie Behar- rell, counsel for the Health Sciences Association of B.C., which acted for two of the three claimants. She is pleased with the decision and explains that the Supreme Court accepted what she says was already believed to be the standard to show a causal connection, which is 50 per cent, just below the balance of probabilities test. "It is what we call a 'tie goes to the worker,'" says Beharrell. The case began several years ago with claims to WorkSafeBC as a result of a "cancer cluster" of female employ- ees who worked at a hospital in Mis- sion. Seven women who were employed as technicians in a lab at the hospital L E G A L R E P O RT \ L A B O U R & E M P L O Y M E N T JEANNIE PHAN Top court lowers the bar for causation in workers' comp Claimants' lawyers applaud decision, but dissent warns evidence was 'mere speculation.' By Shannon Kari T

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