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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 41 ruling creates a space for a tribunal to pick and choose from the evidence, to support the conclusion it wants," she suggests. While the case before the Supreme Court involved a workers' compensa- tion claim, there are questions about whether the judgment could affect other areas of the law. "I think the Supreme Court contributed to the cau- sation analysis in a broad way. It could impact tort claims," says Cooper. Lawyers for plaintiffs in civil cases may try to make those arguments, but the standard on causation is still likely the "but for" test, says Nazeer Mitha, a partner at Harris & Company LLP and lead counsel for the Fraser Health Authority at the Supreme Court. His clients argued that the B.C. tri- bunal wrongly accepted an "association" between the workplace and the breast cancer diagnoses as being sufficient for the claim to be accepted. The Supreme Court decision, though, is primarily a result of the unusual nature of the leg- islative scheme in this area in B.C., says Mitha. "This case was about deference," says the Vancouver-based lawyer. Unlike other provinces, the Adminis- trative Tribunals Act in B.C., sets out the standard of judicial review of decisions of tribunals and it must be found to be "patently unreasonable" to be quashed. The Supreme Court, in its 2008 deci- sion in Dunsmuir, attempted to clear up confusion in the area of judicial review and stated that there would only be two standards, that of reasonableness and correctness. The ruling in Fraser Health, both in the majority and the dissent, analyze the issues from a patently unreasonable stan- dard of deference and do not address the different standard of review in B.C. "It is a bit of an anomaly," says Shaun Fluker, an administrative law professor at the Uni- versity of Calgary law school. However, he adds that it appears that any province would be entitled to enact legislation that mandates a similar standard of deference, regardless of the decision in Dunsmuir. While there is still disagreement over whether a standard of reasonableness or patently unreasonable is measurably different, Fluker says an argument can be made that there is a requirement for greater deference in B.C. than in other provinces. "It does not sit with Dunsmuir, but I think the Supreme Court sees that as a job for the legislature," Fluker says. One area where the court did agree with the Fraser Health Authority was in finding that the B.C. legislation sets out very narrow reconsideration powers for the workers compensation tribunal. In its written arguments filed with the Supreme Court, the tribunal indicated that about one-third of its original deci- sions between 2004 and 2013 were over- turned on reconsideration. A tribunal hearing is not supposed to be a "dry run," says Mitha, in refer- ence to the large number of decisions overturned. As well, since any judicial review would be based on the tribu- nal's final decision, "effectively, it was immunizing the first decision from any review," he points out. "This is a ques- tion of policy. At what point is a court allowed to step in." Order # 804218-65203 $46 2 volume looseleaf supplemented book Anticipated upkeep cost – $3 per supplement 4- supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00227VI-A48890 Canadian Employment Law Stacey Reginald Ball More than 6,145 cases cited Canadian Employment Law is a one-stop reference that provides a thorough survey of FNQMPZNFOU law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada, and is used in law schools throughout Canada. CANADA LAW BOOK ® Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Also available online on WestlawNext® Canada EmploymentSource™ 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected Ball_CL_Mar_12.indd 1 12-03-13 2:27 PM

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