Fraser Health Authority v. Workers' Compensation Appeal Tribunal (B.C.) et al., (2016) 388 B.C.A.C. 69 (SCC)

• Judge: McLachlin, C.J.C., Abella, Moldaver, Karakatsanis, Wagner, Côté and Brown, JJ.
• Court: Supreme Court of Canada
• Case Date: June 24, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 388 B.C.A.C. 69 (SCC);2016 SCC 25

Health Authority v. WCAT (2016), 388 B.C.A.C. 69 (SCC);

    670 W.A.C. 69

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] B.C.A.C. TBEd. JN.054

Workers' Compensation Appeal Tribunal (appellant) v. Fraser Health Authority, Katrina Hammer, Patricia Schmidt and Anne MacFarlane (respondents)

Katrina Hammer, Patricia Schmidt and Anne MacFarlane (appellants) v. Workers' Compensation Appeal Tribunal and Fraser Health Authority (respondents) and Attorney General of Canada, Attorney General of Ontario, Ontario Network of Injured Workers' Groups, Industrial Accident Victims' Group of Ontario, Community Legal Assistance Society and British Columbia Federation of Labour (interveners)

(36300; 2016 SCC 25; 2016 CSC 25)

Indexed As: Fraser Health Authority v. Workers' Compensation Appeal Tribunal (B.C.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Moldaver, Karakatsanis, Wagner, Côté and Brown, JJ.

June 24, 2016.

Summary:

Three health workers with breast cancer were denied workers' compensation benefits for want of a causal connection between the cancer and their employment. The Workers' Compensation Appeal Tribunal allowed the workers' appeals on the ground that a causal connection was established (their breast cancer was an occupational disease due to the nature of the employment). The employer sought reconsideration of the three decisions. The Tribunal confirmed that all three decisions were not patently unreasonable. The employer sought judicial review of the three original and three reconsideration decisions.

The British Columbia Supreme Court, in a judgment reported [2013] B.C.T.C. Uned. 524, allowed the applications. The decisions were patently unreasonable where there was "no evidence" of a causal connection between the breast cancers and the employment. The workers appealed. Apart from the merits of the decision, the Court of Appeal requested submissions from the parties on whether the Tribunal had jurisdiction (apart from that provided in ss. 253.1 and 256 of the Workers Compensation Act) to reconsider its own decision and whether the Tribunal at large, or only the panel that heard the appeal, had jurisdiction to reopen a hearing to correct jurisdictional error.

The British Columbia Court of Appeal, Newbury and Bennett, JJ.A., dissenting, in a judgment reported at (2014), 364 B.C.A.C. 241; 625 W.A.C. 241, dismissed the appeal. The court agreed with the Supreme Court's conclusion that there was no positive evidence that the workers' cancers were caused by occupational factors. Absent such evidence, and in the face of contrary expert evidence, the Tribunal's decisions were patently unreasonable. Respecting the administrative law issues raised respecting reconsideration, the court held as follows: only the panel that heard the appeal had jurisdiction to reopen an appeal to cure a jurisdictional error (not the Tribunal at large); the panel had no jurisdiction to reopen an appeal to determine whether its own decision was patently unreasonable; as no jurisdictional defect was alleged, the panel had no jurisdiction to reconsider its original decision and the reconsideration decisions were nullities; and only the original decisions were subject to judicial review. The workers appealed the setting aside of the Tribunal's decisions that causation had been established. The Tribunal appealed the decisions respecting reconsideration of its decisions.

The Supreme Court of Canada, Côté, J., dissenting in part, allowed the workers' appeals and dismissed the Tribunal's appeals. The court stated that "in light of the applicable standard of review, the Tribunal's finding of a causal link between the workers' breast cancers and their employment should not have been upset". The reconsideration decisions, which merely affirmed the initial decision, were a nullity.

Workers' Compensation - Topic 1069

Boards - Jurisdiction - To reconsider, vary, amend or revoke decision - Section 253.1(5) of the Workers' Compensation Act empowered the Workers' Compensation Appeal Tribunal to reconsider a decision "to cure a jurisdictional defect" - The Tribunal reconsidered an initial decision to determine whether the initial decision was "patently unreasonable" - The British Columbia Court of Appeal held that the reconsideration decision was a nullity - Section 253.1(5) merely preserved the Tribunal's common law power to reopen a proceeding to complete its statutory task and did not permit it to correct errors made within its jurisdiction or to review its own decision for patent unreasonableness - The Tribunal appealed, arguing that s. 253.1(5) was sufficiently broad to permit it to reconsider its own decision for patent unreasonableness - The party seeking reconsideration (Fraser Health) now agreed that the Court of Appeal correctly characterized the reconsideration decision as a nullity - The Supreme Court of Canada held that "In light of the position taken by Fraser Health - that it should not have been able to obtain reconsideration of the Tribunal's original decision and that the reconsideration decision is a nullity - I see no basis for interfering with the decision of the Court of Appeal on this issue" - See paragraphs 26 to 28.

Workers' Compensation - Topic 5604

Compensation - Compensable injuries and disabilities - Causation - Three health workers with breast cancer were denied workers' compensation benefits for want of a causal connection between the cancer and their employment in a laboratory - There was expert medical evidence that the experts were unable to "reach scientific conclusions" to support a causal connection between workplace conditions and breast cancer and unable to "find any scientific evidence for the plausibility of a laboratory work-related etiological hypothesis regarding breast cancer" - However, the experts conceded that the laboratory work could not be ruled out as causing the breast cancer - The Workers' Compensation Appeal Tribunal found a causal connection, finding that the expert evidence standard of scientific proof imposed too stringent a standard - The evidence of past carcinogenic exposure in the laboratory, coupled with the statistically significant cluster of breast cancer among laboratory workers (eight times the rate expected in the general population), constituted "positive evidence" supporting a finding that workplace exposure was as likely as not the cause of their cancer - The Supreme Court of Canada held that the Tribunal did not err in finding a causal connection - The court stated that " Section 254 of the Act provides that, on appeals from decisions of the Board, the Tribunal has exclusive jurisdiction to determine all questions of fact. While, in doing so, the Tribunal may choose to draw from the expert evidence put before it ... the decision remains the Tribunal's to make. The presence or absence of opinion evidence from an expert positing (or refuting) a causal link is not, therefore, determinative of causation. ... causation can be inferred - even in the face of inconclusive or contrary expert evidence - from other evidence, including merely circumstantial evidence. This does not mean that evidence of relevant historical exposures followed by a statistically significant cluster of cases will, on its own, always suffice to support a finding that a worker's breast cancer was caused by an occupation disease. It does mean, however, that it may suffice. Whether or not it does so depends on how the trier of fact, in the exercise of his or her own judgment, chooses to weigh the evidence. ... The Tribunal's original decision cannot be said to have been 'patently unreasonable'. 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." - See paragraphs 31 to 40.

Workers' Compensation - Topic 7020

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Reconsideration of appeal board decision - [See Workers' Compensation - Topic 1069 ].

Counsel:

Timothy J. Martiniuk and Jeremy Thomas Lovell, for the appellant/respondent, the Workers' Compensation Appeal Tribunal;

Tonie Beharrell, Randall J. Noonan and Kaity Cooper, for the appellants/respondents, Katrina Hammer, Patricia Schmidt and Anne MacFarlane;

Nazeer T. Mitha, Dianne D. Rideout and Erin Cutler, for the respondent, Fraser Health Authority;

Christine Mohr and Alexander Pless, for the intervener, the Attorney General of Canada;

Sara Blake and Sandra Nishikawa, for the intervener, the Attorney General of Ontario;

Ivana Petricone, for the interveners, the Ontario Network of Injured Workers' Groups and the Industrial Accident Victims' Group of Ontario;

Monique Pongracic-Speier, for the interveners, the Community Legal Assistance Society and the British Columbia Federation of Labour.

Solicitors of Record:

Workers' Compensation Appeal Tribunal, Richmond, British Columbia, for the appellant/respondent, the Workers' Compensation Appeal Tribunal;

Health Sciences Association of British Columbia, New Westminster, British Columbia and Hospital Employees' Union, New Westminster, British Columbia, for the appellants/respondents, Katrina Hammer, Patricia Schmidt and Anne MacFarlane;

Harris & Company, Vancouver, British Columbia and Health Employers Association of British Columbia, Vancouver, British Columbia, for the respondent, Fraser Health Authority;

Attorney General of Canada, Toronto, Ontario, for the intervener, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

IAVGO Community Legal Clinic, Toronto, Ontario, for the interveners, the Ontario Network of Injured Workers' Groups and the Industrial Accident Victims' Group of Ontario;

Ethos Law Group, Vancouver, British Columbia, for the interveners, the Community Legal Assistance Society and the British Columbia Federation of Labour.

This appeal was heard on January 14, 2016, before McLachlin, C.J.C., Abella, Moldaver, Karakatsanis, Wagner, Côté and Brown, JJ., of the Supreme Court of Canada.

On June 24, 2016, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Brown, J. (McLachlin, C.J.C., Abella, Moldaver, Karakatsanis and Wagner, JJ., concurring) - see paragraphs 1 to 40;

Côté, J., dissenting in part - see paragraphs 41 to 82.