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WSIA - Occupational Disease. Toronto (City) v. WSIAT [causation of occupational disease]
In Toronto (City) v. WSIAT (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here from several WSIAT rulings involving workers that are "presumptively eligible for workers’ compensation benefits if they contract a listed “occupational disease”, provided that they meet the relevant criteria" - described here as a 'rebuttable presumption', here causal in nature.
Here the court reviews the statutory WSIA background relating to this firefighter occupational disease issue:Statutory Background:
[10] Section 15.1(4) of the Workplace Safety & Insurance Act, 1997, S.O. 1997 c. 16 Sch. A (“WSIA”) states that if a firefighter or fire investigator suffers from and is impaired by a disease listed in the Regulation, the “disease is presumed to be an occupational disease that occurs due to the nature of the worker’s employment as a firefighter or fire investigator, unless the contrary is shown.”
[11] The relevant Regulation is O. Reg. 253/07. In 2014, it was amended to include breast cancer in the list of diseases presumed to be work-related for firefighters. The only relevant precondition for breast cancer is s. 5(2) of the Regulation, which provides that the firefighter must have worked in that capacity for at least 10 years prior to diagnosis.
[12] The Regulation adopts the definition of “firefighter” provided in the Fire Protection and Prevention Act, 1997, S.O. 1997 c. 4, which captures anyone employed in a fire department to undertake fire protection services. “Fire protection services” is defined broadly to include:(a) fire suppression, fire prevention and fire safety education,
(b) mitigation and prevention of the risk created by the presence of unsafe levels of carbon monoxide and safety education related to the presence of those levels,
(c) rescue and emergency services, and
(d) communication in respect of anything described in clauses (a) to (c). [13] There is no dispute that the three workers, having worked as communications/dispatch firefighters, meet the definition of “firefighter” for the purposes of s. 15.1(4) of WSIA. Since they were each employed for at least ten years prior to their breast cancer diagnosis, there is also no dispute that they are captured by the presumption in s. 15.1(4).
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Cancers in Firefighters Policy:
[17] One of the Board policies the Tribunal is required to apply pursuant to s. 126(1) is an operational policy manual entitled Cancers in Firefighters and Fire Investigators (the “Cancers in Firefighters Policy”). This document outlines the prescribed cancers and the circumstances under which they are presumed to be work-related occupational diseases.
[18] While the Cancers in Firefighters Policy largely repeats the requirements for breast cancer entitlements provided in the WSIA and Regulation, it does contain an additional statement that “the presumption may be rebutted if it is established that the employment was not a significant contributing factor to the occurrence of the cancer”. It is this provision that Toronto relies on to argue that evidence concerning the nature of the work or work environment should be considered as part of the rebuttal analysis.
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[52] The key question is the meaning of the words “unless the contrary is shown”.
[53] The plain and ordinary meaning of “the contrary” is “the opposite”, or some similar word. It is the negation of the proposition in question, which is often reflected by use of the word “not”.
[54] The proposition that is presumed by s. 15.1(4), adjusted to conform to the facts of this case, is this: the cancer occurred due to the nature of the worker’s employment as a firefighter.
[55] The contrary proposition is this: the cancer did not occur due to the nature of the worker’s employment as a firefighter.
[56] A party choosing to challenge the presumption would have the onus of proving this contrary proposition. Proving a negative is not an easy task. There are two general groups of evidence that a litigant could proffer to meet that onus. The first is to put forward evidence as to the nature of the worker’s employment, and demonstrate that there was nothing about those employment conditions that created a risk of causing cancer (i.e. “ruling out” causation from employment). The second is to put forward evidence as to potential causes that are external to the workplace, such as genetics, lifestyle and so on, to demonstrate that those causes were the probable genesis of the cancer (i.e. “ruling in” external causes).
[57] The Tribunal chose to consider the latter, but expressly excluded the former from consideration. There is no logical basis, arising from the plain words used by the legislature, to either require or permit such an approach, because the section is open-ended and does not prescribe or limit the manner in which “the contrary” could be proven. There is no rational chain of analysis evident in the Tribunal’s reasons that justifies this result, given that the Tribunal is constrained by the words chosen by the legislature.
[58] In effect, the Tribunal has rewritten the rebuttable presumption, by replacing the words “unless the contrary is shown” with the words “unless it is shown that the disease occurred due to causes external to the worker’s employment”. With respect, such an approach is not an exercise in statutory interpretation, it is an exercise in statutory draftsmanship.
[59] It is no justification for the Tribunal’s approach to say that permitting the consideration of work-relatedness would undermine the presumption. The presumption would remain operative. All that the worker would need to prove are the statutory criteria for entitlement. If another party, presumably the employer, wished to challenge the presumption, the onus of proof would shift to that party to prove that the cause of the cancer was not work-related. If they failed to do so, or the evidence was inconclusive either way, the presumption would prevail and benefits would be awarded.
[60] Quite apart from logic and the plain meaning of the words used in s. 15.1(4), the Tribunal’s approach is contrary to the law and policy that constrains it in its decision-making, particularly the binding nature of the Cancers in Firefighters Policy.
[61] Section 159(2) of the WSIA prescribes the powers of the Board, and reads, in part, as follows:(2) Subject to this Act, the Board has the powers of a natural person including the power,
(a) to establish policies concerning the premiums payable by employers under the insurance plan;
(a.1) to establish policies concerning the interpretation and application of this Act;
(a.2) to establish policies concerning evidentiary requirements for establishing entitlement to benefits under the insurance plan;
... [62] The Board’s Cancers in Firefighters Policy is both a policy regarding evidentiary requirements for establishing entitlement to benefits, and a policy regarding the interpretation and application of the Act. In directing that “the presumption may be rebutted if it is established that the employment was not a significant contributing factor to the occurrence of the cancer”, the Policy prescribed the manner in which the rebuttable presumption in s. 15.1(4) was to be interpreted and applied. Furthermore, it implicitly directed that evidence that the employment was not a significant contributing factor to the occurrence of the cancer was relevant evidence to be considered in the rebuttal analysis. Thus, the Policy fell squarely within the statutory powers of the Board to establish.
[63] The Tribunal, pursuant to s. 126(1), is obligated to apply an applicable Board policy when making its decision. They clearly did not do so. They interpreted the rebuttable presumption in a manner contrary to the Policy, in that they held that only evidence of external causation could be considered, and in so doing they refused to consider evidence of work-relatedness (or lack thereof) that the Policy clearly rendered relevant to the analysis.
[64] In my view, this decision is untenable in light of the relevant factual and legal constraints that the Policy represents, as discussed in Thales, above, and is therefore unreasonable.
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[73] There are other core provisions of the WSIA that also constrain the decision-making of the Tribunal, because they clearly connect the worker’s entitlement to compensation to an injury or illness occurring during the course of the worker’s employment. Section 13(1) is the embodiment of this “work-relatedness” concept, and reads as follows:13 (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. [74] While this section refers to “personal injury by accident”, it is made relevant to the case at bar by virtue of s. 15, relating to “occupational diseases”. That section reads, in part, as follows:15 (1) This section applies if a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged.
(2) The worker is entitled to benefits under the insurance plan as if the disease were a personal injury by accident and as if the impairment were the happening of the accident. [emphasis added] ....
[80] I cannot leave this discussion without noting that the Cancers in Firefighters Policy has recently been amended. These amendments are not relevant to the disposition of the matters before this court, because Board policy does not operate retroactively. However, it is worthwhile to observe how the Board has attempted to remedy the problems that have led to all of the litigation in the case at bar. The new policy reads as follows:Rebutting the presumption
If a worker qualifies for the presumption, the worker’s cancer is presumed to be an occupational disease that occurs due to the nature of the worker’s employment as a firefighter or fire investigator, unless the contrary is shown. If the contrary is shown, the presumption of work-relatedness is rebutted.
The presumption is only rebutted if the evidence establishes on a balance of probabilities that:
. the worker either had negligible exposure or was never exposed to the hazards of a fire scene or to another known occupational risk factor for their cancer during their employment as a firefighter or fire investigator, or
. the worker’s non-occupational risk factors were of such importance that they overwhelmed any occupational exposure the worker had as a firefighter or fire investigator, rendering it insignificant in the development of the worker’s cancer. [81] It is noteworthy that the general statement in the earlier version — that the presumption may be rebutted if it is established that the employment was not a significant contributing factor to the occurrence of the cancer — has been replaced by specific references to “negligible exposure” or no exposure at all to the “hazards of a fire scene or to another known occupational risk factor”.
[82] This additional clarity is helpful, and one hopes that it will ensure that the case at bar will never be repeated.
[83] Having said that, I am of the view that the new version is still sending, in a more detailed and specific way, the same message that the earlier version of the Policy did in a more general way: that the decision-maker should, in an appropriate case, look at working conditions and their potential to cause the disease in question, in determining whether the presumption has been rebutted.
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