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40 S E P T E M B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m were diagnosed over the years with breast cancer. The rate of breast cancer at the lab was eight times the rate of the general population in B.C. The claims of a connection to con- tracting breast cancer from working at the hospital were initially rejected. How- ever, that decision was overturned by an appeal tribunal. When the employer, the Fraser Health Authority, asked for a reconsideration, the tribunal again sided with the employees. It found it was not "patently unreasonable" that occupa- tional factors were a contributor to the cancer. A B.C. Supreme Court judge and the Court of Appeal, in a 3-2 deci- sion, looked at the expert medical evi- dence and ruled in favour of the Health Authority and against the employees. The B.C. courts found that the tribunal did not accord proper weight to the expert evidence that was presented. In overturning these rulings, the Supreme Court stated that the courts below made a "fundamental misappre- hension of how causation, irrespective of the standard of proof, may be inferred from evidence," wrote Justice Russell Brown for the majority. Three expert reports concluded that while there was a "cluster" of employ- ees diagnosed with breast cancer, there was not scientific evidence to support a causal connection between the illnesses and the workplace. The cluster of breast cancer diagnoses may have been a result of non-occupational risk factors, past exposures to carcinogens or a statistical anomaly. The tribunal ultimately conclud- ed that given the elevated number of employees diagnosed with breast cancer and the possibility of exposure to past carcinogens, the claimants met the stan- dard set out in the B.C. Workers Com- pensation Act. The majority decision of the Supreme Court highlighted the fact that the pro- vincial statute gives the tribunal exclu- sive jurisdiction to determine all ques- tions of fact. "The presence or absence of opinion evidence from an expert positing (or refuting) a causal link is not, therefore, determinative of causa- tion," wrote Brown. The requirement for "positive evidence" of a causal rela- tionship "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 evi- dence," he added. Kaitie Cooper, who acted for the third claimant, says if the B.C. Court of Appeal ruling had been allowed to stand, it would have been very difficult for individuals to receive benefits in these types of cases. "Decision-makers do not have to defer to the experts. That is really important," says Cooper, coun- sel for the Hospital Employees' Union in B.C. The workers compensation legisla- tion in B.C. states that if the evidence is evenly weighted on an issue, a tribunal must rule in a manner that favours the worker. Beharrell describes the scientific findings in Fraser Health as inconclusive and stresses that there was evidence of a temporal connection and an increased rate of cancer. "I think it is important that the court recognized that when proof is hard, you have to look at all of the evidence. Otherwise, why even have a trier of fact?" she says. There were a number of interven- ers in the case, including the Industrial Accident Victims' Group of Ontario. It argued that if a standard of scientific certainty was required, it would raise the bar beyond that of a balance of probabilities and be unfair to claimants. "Sometimes, the science is not clear. Do you have to wait for the science to catch up?" asks Maryth Yachnin, counsel for the workers' organization. Claims for workers compensation should not face significant legal obstacles as long as there is some legitimate evidence of cau- sation. "It is part of the historic trade- off. Workers give up the right to sue in exchange for benefits," says Yachnin. Justice Suzanne Côté, in a strongly worded dissent, stated that the tribunal came to its conclusions based on "mere speculation" rather than any positive evidence. "The presence of a cluster of diagnosed cases of breast cancer does not, on its own, constitute evidence of causative significance," stated Côté. The majority judgment appears to find that an association, rather than a causal connection, is sufficient to meet the legislative test, says Samantha Seabrook, co-chair of the Workplace Safety & Insurance practice group at Hicks Morley LLP in Toronto. "It is not about doubting the work- er, it is whether it is work related," Seabrook says. "The concern is that this 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 THE PRESENCE OR ABSENCE OF OPINION EVIDENCE FROM AN EXPERT POSITING (OR REFUTING) A CAUSAL LINK IS NOT, THEREFORE, DETERMINATIVE OF CAUSATION. JUSTICE RUSSELL BROWN

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