Canadian unions win work cancer evidence breakthrough

The Supreme Court of Canada has ruled 7-1 that workers made ill by hazardous substances at work don’t need to prove their case with scientific certainty in order to collect workers’ compensation.

Health union members Kristina Hammer, Patricia Schmidt and Anne MacFarlane are three of seven lab technicians out of a total of 63 who developed breast cancer after working at a Mission Memorial Hospital over a 20 year period. Their cancers occurred at a rate eight times higher than expected.

The women blamed their work environment which, especially early in their careers, meant working with solvents and reagents containing known carcinogens. Until 1994 the air intake vent of their lab was near the hospital incinerator that burned medical waste containing plastics and chemicals.

The Supreme Court found HSA members Katrina Hammer and Anne MacFarlane and HEU member Patricia Schmidt were entitled to workers’ compensation payouts. Their employer, Fraser Health Authority, fought their claims for more than a decade.

HSA president Val Avery said: “Beginning almost 15 years ago, these union members embarked on a campaign for compensation because they were sick. Today, they are responsible for setting an important precedent for all workers.”

The union’s lead counsel, Tonie Beharrell, said: “If there is evidence that occupational factors are an element in workers’ health, a tribunal is able to consider all of the evidence before it, including circumstantial evidence, and, in this case, approve workers’ compensation coverage.”

“This is a significant victory for women and men on health care’s front lines who in the course of caring for others, become ill because of workplace hazards,” says HEU Secretary-Business Manager Jennifer Whiteside.

The unions say at issue was the role and authority of administrative tribunals that have specialised 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.

The joint union submission noted “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.”

In its judgment, the Supreme Court of Canada ruled: “While the record on which that decision was based did not include confirmatory expert evidence, the Tribunal nonetheless relied upon other evidence which, viewed reasonably, was capable of supporting its finding of a causal link between the workers’ breast cancers and workplace conditions.”

2 thoughts on “Canadian unions win work cancer evidence breakthrough”

  1. Wow! Let’s hope this is carried through to the UK soon, instead of us being saddled with the ridiculous ‘Doubling of the risk test’ the criteria for which was set during the Phurnacite Group Litigation case but was set possibly on flawed evidence, using a Toxicologist who wasn’t what he professed to be. The judge relied on this Toxicologist quite heavily throughout the entire case, and found out only at the end of the case after all evidence had been given, she had only to make her judgement, which was delayed by nearly a year. Such an important case, she refused to accept him as a Toxicologist, despite him giving evidence as one throughout the entire case, taking part in Joint meetings of Toxicologists, influencing joint reports, etc., yet bizarrely although she decided she couldn’t accept him as a Toxicologist, because he was not qualified to act as one, he had no medical, biological or toxicological qualifications which he admitted to in Court, & no relevant experience in the industry at all, she still allowed all his unqualified evidence to stand & still used it to make her final judgement. If he was not qualified why was his evidence, his expert reports, and such all still allowed to stand? If he wasn’t qualified then surely his evidence wasn’t either? The Phurnacite case set this huge landmark precedent that will prevent in future many victims of workplace exposures from seeing justice done for the harm caused to them. Whilst it was hailed by good PR to be a huge success it was nit, it was only 50% successful after all, many victims still lost out, such as the bladder cancer & skin cancer cases, despite there being scientific evidence to prove them, but as the Judge stated in the bladder cancer cases she was not shown sufficient evidence & was only told of 3 cases which she deemed too few. In fact there was sufficient medical research/evidence to prove a causal link, but as she stated she wasn’t presented with it, not that there wasn’t any available. She was told wrongly that there were only 3 cases when in fact a health study of the plant workers by the Health Authority showed at least 10 cases. Had she have known this her decision would have been very different. The claimants legal team had this report. Why was the evidence from it regarding the true number of bladder cancer cases not used? The Phurnacite case sets a ridiculously high level of proof that most victims harmed may not be able to meet. How unjust is this?

    More & more scientific evidence proves that even at lower levels of exposure, even for shorter periods, can & does cause harm. The law, sadly, does not keep up with scientific evidence, even when it is used appropriately, instead it’s most likely ripped to shreds by lawyers with no medical qualifications whatsoever. These cases should be won based on medical evidence, not on who has the stronger lawyer in court.

    Says it all doesn’t it….. ‘…The women blamed their work environment which, especially early in their careers, meant working with solvents and reagents containing known carcinogens. Until 1994 the air intake vent of their lab was near the hospital incinerator that burned medical waste containing plastics and chemicals…’ There is so much in these emissions, so many elements, particulates in the dust. But particulates in them all, some common denominator in them all that may link cases together.

    Both myself & my Husband were diagnosed with the same rare autoimmune disease Wegener’s Granulomatosis or GPA as it’s now known.

    We are said to be the only husband & wife couple in the world to have it that didn’t meet via a support group. Been together a long time before we were diagnosed. Its not contagious. Hence why Doctors decided there must be a cause to our illness. They set the odds of us both having it at 100 million to 1….. So not by chance! Crystalline silica & more recently asbestos too is known to cause autoimmune disease.

    Our only joint exposure is his workplace exposure to asbestos & silica in asbestos cement boards and wood dust mostly from wood composite boards, which contain sufficient crystalline silica to cause premature blunting in industrial strength diamond & tungsten carbide tipped saw blades according to peer reviewed research. This concludes each time that it’s the high silica content that causes it. But you won’t see this on any MSDS. The wood industry don’t want that.

    At a symposium in Cambridge there was a group of nurses from the same hospital with WG too. Makes you wonder.

    There are many stonemasons who have silicosis and WG too. Many who have these types of autoimmune disease have had exposures to dust containing crystalline silica, but most may not realise it.

    Crystalline silica dust the common denominator. Like the ‘mystery’ CKD in Sri Lanka, not dehydration ( I think they’re well used to working in hot temperatures) & certainly not due to climate change. Most likely the crystalline silica in the rice, grain dust they’re inhaling daily. If it’s in the water, its in the dust. Rice, grain, sugar bagasse all known to have high silica levels, its what protects it from water rot, pests, etc.

    Lets hope this same principal set in Canada will filter through to the UK soon. Those harmed by workplace exposures deserve to see justice done, without the Doubling of the risk test’. That precedent set on what was most likely to be considered flawed evidence if the truth be known, needs to be challenged. Let’s hope it’s. Some time soon.

    God only knows how they got away with it in the Phurnacite case, but maybe it suited the Government who employed this unqualified witness as their ‘expert’. The result after all would be very beneficial to them in the future, with all their liabilities now, such as those of British Coal for example.

    Let’s hope this Canadian case lowers that burden of proof and will prevent victims of diseases caused by workplace exposures from being made victims twice over in future. No victim deserves that . No employee deserves to suffer & die, all because they went to work to provide for their families. Our justice system has to change to acknowledge that if victims of workplace exposures are to truly see justice done for them, but more importantly perhaps to prevent harm being caused in the first place. Lets hope so. We have to have hope!

Leave a Reply

Your email address will not be published. Required fields are marked *