Dear Colleagues:

 

Those interested in causation will be interested in the SCC decision in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16042/index.do.

 

The issue was whether a tribunal’s finding of fact that breast cancer suffered by a number of women was caused by their employment at a medical lab could be sustained.  The employer claimed that the finding was patently unreasonable since the medical experts who provided evidence concluded that there was a lack of a sufficient scientific basis to causally link the incidence of breast cancer to the workers’ employment in the laboratory. By a majority of 6-1, the Supreme Court found that the decision of the tribunal was not patently unreasonable since the presence or absence of opinion evidence from an expert positing or refuting a causal link is not determinative of causation. As the Justice Brown noted for the majority, causation can be inferred by the trier of fact — even in the face of inconclusive or contrary expert evidence — from other evidence, including merely circumstantial evidence. 

 

Congratulations go out to ODGers, David Cheifetz and Richard Wright on their citation by the court.

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)