In early 2014, we reported on a B.C. Human Rights Tribunal decision in which Carl Kelly was awarded $75,000 in damages for injury to dignity, feelings, and self-respect. This award was and remains the highest amount ever awarded in Canada by a human rights tribunal under this category of damages. At the time of the Kelly decision, B.C. Human Rights Tribunal awards of damages in British Columbia for injury to dignity and feelings averaged approximately $5,000 with a high of $25,000. On June 24, 2016, the B.C. Court of Appeal reversed the Supreme Court decision and restored the $75,000 damages award.
By way of background, Carl Kelly was a medical student who was terminated from the University of British Columbia’s Medical Residency Program for failure to meet certain standards for some of his residency rotations. Kelly filed a human rights complaint against UBC, claiming that the university had failed to adequately accommodate his disabilities which included ADHD, non-verbal learning disorder, and intermittent anxiety/depression disorder. The B.C. Human Rights Tribunal agreed that UBC had not adequately accommodated Kelly and, besides the $75,000 awarded for injury to dignity and feelings, it awarded Kelly over $385,000 for lost wages (for consequential delays in completion of his residency), special damages, costs, and interest.
The university petitioned the B.C. Supreme Court for a judicial review of the Tribunal’s decision and was successful in having the $75,000 damages award quashed on the basis that it was patently unreasonable, and not based on evidence. On June 24, 2016, the B.C. Court of Appeal reversed the Supreme Court decision and restored the $75,000 awarded by the Tribunal for injury to dignity and feelings.
In its reasons, the Court of Appeal rejected UBC’s submissions that the damages award should be quashed on the basis that they were so much higher than any previous award for injury to dignity, feelings, and self-respect. The Court of Appeal stated that the Tribunal had discretion to order a high damages award if it felt it was warranted on the facts, and held that it was reasonable for the Tribunal to find that Kelly’s situation was unique, because UBC’s failure to accommodate effectively ended Kelly’s lifelong dream of becoming a doctor. Further, the court held that the Supreme Court had intruded into the decision-making realm of the Tribunal when it substituted its views for the Tribunal’s as to whether Kelly was more significantly impacted than other claimants.
By confirming that it was not patently unreasonable for the Tribunal to exceed the “range” of damages previously awarded by the Tribunal for injury to dignity, feelings, and self-respect , the B.C. Court of Appeal confirmed the scope of deference courts should grant to tribunals when making findings of fact and determining damages. While the Kelly decision re-establishes the high watermark for damages for injury to dignity, feelings, and self-respect, given the reasons of the Court of Appeal, employers will at least be able to argue, in future cases, that any reference to the Kelly award is not binding and should not be followed in subsequent complaints/hearings.
On June 24, 2016, the Supreme Court of Canada provided considerable latitude to decision makers regarding occupational disease and injury in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority (“Fraser Health”).
Fraser Health concerned three technicians at a hospital laboratory who were diagnosed with breast cancer. The workers made a claim under the B.C. Workers Compensation Act on the basis that their cancer was an occupational disease. During the process, WorkSafeBC considered three expert reports. One report was prepared by the Occupational Health and Safety Agency for Health Care in British Columbia regarding the incidence of cancer in the laboratory where the workers were employed. The other two reports were prepared by doctors specializing in occupational medicine.
Each of the reports’ conclusions were substantially similar: the experts were unable to conclude there was a definitive link between the technicians’ jobs and their disease. As a result, WorkSafeBC denied the claims.
The technicians appealed to the Workers’ Compensation Appeal Tribunal (“WCAT”) and were successful. WCAT found that while the expert reports could not conclusively link the workers’ cancer to their jobs, this would not preclude a successful claim. Compensation for occupational diseases requires the application of a lower standard than scientific certainty: as long as there is some “positive evidence” to suggest a link between a worker’s disease and his or her employment, this is sufficient. Applying that principle to the facts, WCAT noted two kinds of positive evidence:
- the disproportionate rate of cancer among the technicians (eight times the average of the general population); and
- the closeness in time between the workers’ employment and the onset of their disease.
Taken together, WCAT held these facts were enough for it to draw a “common sense” inference that the workers’ employment caused the cancer. WCAT held that the technicians were eligible for compensation.
The Supreme Court of British Columbia reviewed the WCAT decision. The Court noted that in these instances, under the B.C. Administrative Tribunals Act,the standard of review to be applied is whether the WCAT decision was “patently unreasonable”. The Court found there was no evidence capable of supporting WCAT’s conclusion that the workers’ employment caused the cancer. WCAT ignored the expert evidence in favour of its own expertise and its decision was therefore patently unreasonable. The Court set aside the decision and remitted the matter back to WCAT.
The B.C. Court of Appeal denied the workers’ appeal and the matter came before the Supreme Court of Canada (“SCC”). The SCC focused on two major issues at the heart of the case. The first was the applicable standard of review: “patent unreasonableness.” This standard, the SCC held, means that a tribunal’s decision should be overturned only when there is no evidence capable of supporting it. In other words, as long as the decision falls within a range of possible outcomes, a court should let it stand.
The second issue was whether WCAT’s decision was patently unreasonable. In order to make this determination, the SCC considered the standard of causation in occupational disease cases. In B.C., a worker’s employment need only be of some “causative significance” or “more than a trivial or insignificant aspect” in the development of the disease. In other words, the employment does not need to be the cause of the disease, but only a cause. Although the expert reports were inconclusive, they did not rule out the possibility of a link between the cancer and the employment. As WCAT noted, the cancer rate among the workers was statistically higher than the average, and the closeness in time between the workers’ employment and their diagnoses suggested it was possible that their employment caused the disease. The WCAT decision fell within a range of possible outcomes and thus the decision could not be considered patently unreasonable. The workers’ appeal was successful and the WCAT decision was restored.
In order to be compensable in B.C., a worker only needs to demonstrate that her or his employment was more than a trivial aspect of the injury or disease and where the evidence weighs evenly, the law requires WorkSafeBC to rule in favour of the worker. While this is not new, the SCC appears to have expanded that principle to allow WCAT to draw its own “common sense” inferences in the absence of scientific proof. This is surprising given the vital role that expert medical evidence has traditionally played in workers’ compensation decisions. This case also serves as an important reminder of the very high level of deference afforded to administrative tribunals by courts, which one judge described as “the right to be wrong.”