Canadian Occupational Safety

January/February 2021

Canadian Occupational Safety (COS) magazine is the premier workplace health and safety publication in Canada. We cover a wide range of topics ranging from office to heavy industry, and from general safety management to specific workplace hazards.

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Page 23 of 47

F E A T U R E 24 firm Mathews Dinsdale & Clark LLP. The Supreme Court's decision is binding on B.C.'s workers' compensation board for that case and those circumstances, but that still leaves a lot up in the air — not just in B.C. but throughout the rest of Canada. So-called "presumption clauses" for occupational groups can vary by jurisdiction and affect the different types of cancers that are compensated. Ambassador Bridge and firefighters In their paper "Causality Advocacy: Workers' Compensation Cases as Resources for Identifying and Preventing Diseases of Modernity" (published in New Solutions: A Journal of Environmental and Occupational Health Policy in 2018), researchers Michael Gilbertson and James Brophy discuss another case: In 2018, the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) rejected a case involving a female CBSA border guard who had developed breast cancer in her right breast in 2001 and her left breast in 2007. She had worked at Ambassador Bridge for 20 years prior to her diagnosis and alleged that the cancer was linked to occupational exposures such as traffic- related air pollution, second-hand tobacco smoke and shiftwork. The researchers note that one of the central issues around the case was whether it was part of a "cluster" of breast cancer cases at Ambassador Bridge. Indeed, between 1999 and 2002, between six and eight female customs inspectors had developed breast cancers. By 2014, the cumulative total of cases was around 14 cases. Nevertheless, WSIAT stated in its decision that evidence was insufficient to address a cluster argument and that the panel did not consider evidence of incidences of breast cancer in other workers. The panel notably found, among other things, that scientific evidence was not sufficient to support a relationship between air pollution (diesel fumes or automotive exhaust) and the worker's breast cancer. There are nevertheless some instances in which breast cancer is legitimately deemed to be an occupational disease. In Alberta, for example, if firefighters have a minimum number of years of regular exposure to the hazards of a fire scene (10 years) and then have primary site breast cancer, it's presumed to be work related and workers are eligible for WCB Alberta benefits (primary site breast cancer is the stage of cancer where the breast cancer has not spread beyond the breast or the lymph nodes under the arm). Establishing a standard of proof With regards to the B.C. ruling cited above, Brophy says that, to him, "one of the most significant findings of the Supreme Court ruling was that essentially the compensation boards are not applying the right 'standard of proof ' to adjudicating occupational disease claims. The standard is a 'probable connection' and, subsequently, did the workplace play a 'significant contributing role' in the causation of the particular disease." However, he says that the compensation standard of proof is not the same as a scientific standard or even the legal standard of "beyond a reasonable doubt." "This is important," says Brophy, "because the scientific evidence is quite robust regarding an association between certain carcinogens and endocrine- disrupting chemicals. However, the compensation boards do not apply the correct standard of proof and, therefore, reject claims for a 'lack of sufficient evidence.'" This could explain the ruling in the Ambassador Bridge case. What can we conclude? To summarize, this is not saying that, in every case, breast cancer is an occupational disease. Of course, breast cancer is related to other factors as mentioned previously (lifestyle, genetics, etc.). The question here is, within certain industries, is there an explicit risk of breast cancer? And, consequently, in those industries, such as the plastics sector, can breast cancer be considered an occupational hazard? The answer remains complicated, and the main culprit seems to be the lack of perceived scientific evidence. And it's not just about the science — regulatory and legal bodies play a part, too. Alhough we have discussed studies that prevent conclusive results and there is certainly evidence of carcinogens that directly correlate with breast cancer, courts may not deem current evidence to be conclusive enough. "Occupational disease is a huge draw on resources for our health-care system, in addition to negatively impacting workplaces and harming those suffering from it and their families," says Bouwmeester. She adds that it's to everyone's benefit that we better understand carcinogens in workplaces. "From a humanistic, moralistic and legalistic perspective, there's a benefit to getting more reliable research done." Lack of knowledge is a huge problem for workers affected by breast cancer. A better understanding of the disease and the risks presented by certain environments and chemicals is necessary, in large part because recognition as an occupational disease means fairer and easier access to workers' compensation. It's also about knowledge. A better understanding of this issue could lead to positive improvements in these industries as, ultimately, every worker has the right to a healthy and safe workplace. Echoing McArthur's calls at the beginning of the article, the Occupational Cancer Research Centre issued general policy recommendations to prevent occupational cancers in Canada in its September 2019 report "Burden of Occupational Cancer in Canada: Major Workplace Carcinogens and Prevention of Exposure" including strengthening occupational exposure limits, reducing or eliminating the use of cancer-causing substances in workplaces and creating registries of workplace exposures to occupational carcinogens that will help keep track of exposures over time. "The scientific evidence is quite robust regarding an association between certain carcinogens and endocrine-disrupting chemicals. However, the compensation boards do not apply the correct standard of proof." James T. Brophy, University of Windsor

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