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.”