HSABC at Supreme Court to fight for breast cancer survivor's workers' compensation

An investigation into the cancer identified there was a cancer cluster in the laboratory — where the incidence of breast cancer was eight times the rate of breast cancer in B.C.

Vancouver (18 Jan. 2016) — Tonie Beharrell and Randy Noonan, lawyers for the Health Sciences Association of B.C. (HSABC/NUPGE) and Kaity Cooper, the lawyer from the Hospital Employees' Union (HEU) appeared in the Supreme Court of Canada on January 14 to challenge the decision of the BC Supreme Court and BC Court of Appeal to overturn a decision of the BC Workers’ Compensation Appeal Tribunal (WCAT).

The WCAT had recognized three cases of breast cancer contracted at Mission Memorial Hospital as being related to their occupation, and thus eligible for WorkSafe BC compensation.

Claims that women contracted breast cancer from the workplace approved 

HSABC/NUPGE members, Katrina Hammer and Anne MacFarlane, and HEU member Patricia Schmidt, all worked in the laboratory at Mission Memorial Hospital. All three contracted breast cancer, and an investigation into the cancer identified there was a cancer cluster in the laboratory — where the incidence of breast cancer was eight times the rate of breast cancer in B.C.

Their claims to WorkSafe BC for compensation for breast cancer as an occupational disease were initially denied in each case, but the WCAT reconsidered the decisions, and allowed the claims in every case. WCAT reviewed all of the evidence before it, including expert reports that did not rule out occupational factors as a contributor to the cancer.  It found that it was “sufficient to conclude it was as likely as not that some workplace exposure was of causative significance.”

Question becomes whether courts should overturn decisions made by Tribunal experts

The Fraser Health Authority, the employer, judicially reviewed the WCAT award and the BC Supreme Court and BC Court of Appeal sided with Fraser Health Authority, stating there was no evidence of work causation. 

HSABC/NUPGE sought, and received, leave from the Supreme Court of Canada to appeal the BC court decisions on the basis that the courts applied the wrong standard in their review of the WCAT decisions, and wrongly found that there was “no evidence” on which WCAT could have based its decision. 

At issue is the role and authority of administrative tribunals like the WCAT, which have specialized 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.  

Court case not just for members but to protect integrity of the compensation system

In its submission to the Supreme Court of Canada, HSABC/NUPGE argued that:

“As noted by the original panel, 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.”

Jeanne Meyers, HSABC’s Executive Director of Legal Services and Labour Relations, said HSABC/NUPGE’s decision to pursue the case to the highest court in Canada was taken to support not just the members from Mission Memorial Hospital, but to uphold the integrity of the Workers’ Compensation system, based on a historic compromise where employees gave up the right to sue employers, and in exchange employers provide a no-fault insurance scheme.

NUPGE 

The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 360,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE

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