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Supreme Court of Canada Decisions

Important Caselaw - Presumption of a Work Injury

Knowledge and Information for Injured Workers, by Injured Workers

Presumption of a Work Injury Because of a Workplace Accident


Fraser Health Authority v. Workers’ Compensation Appeal Tribunal(BC - SCC) - Positive Case
Decision issued by the Supreme Court of Canada
Decision issued by the Court of Appeal for British Columbia
Decision issued by Supreme Court of British Columbia - Judicial Review

20168122 (Re), 2016 CanLII 88896 (NB WCAT) - Positive Case
Decision issued by the New Brunswick Workers Compensation Appeals Tribunal
20167949 (Re), 2016 CanLII 54508 (NB WCAT) - Positive Case
Decision issued by the New Brunswick Workers Compensation Appeals Tribunal
VSL Canada Ltd. v. WHSCC (NB WCB) - Positive Case
Decision issued by the New Brunswick Workers Compensation Appeals Tribunal

This is probably one of the MOST contentious issues with workers compensation boards and injured workers.
In many common law jurisdictions it is presumed that a worker has suffered a workplace injury,
if the injury was the result of a workplace accident, unless it has been proven otherwise.
Often WCB/WSIB/WorkSafe staff will try and reverse onus the issue of proof of a injury onto the injured worker, which is NOT what the law is stating!
Fraser Health Authority v. Workers’ Compensation Appeal Tribunal

Unfortunately, I have not had time to read the cases to provide a preview, but this involves workers being diagnosed with work related cancer. Ultimately, they won their case at the Supreme Court of Canada.

British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 (CanLII), [2016] 1 SCR 587
This was the decision of the Supreme Court of Canada I have not read it fully yet, but I will and provide a summary here. It has been cited by some 277 other cases.

Workers' Compensation Appeal Tribunal, et al. v. Fraser Health Authority, et al., 2015 CanLII 36779 (SCC)
This was the application for leave to appeal at the SCC.

Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 (CanLII)
This was the decision at the BC Court of Appeal.

Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2013 BCSC 524 (CanLII)
This was an application for Judicial Review of a WCAT decision. I will post more once I have read the Decision.
20168122 (Re), 2016


20168122 (Re), 2016 CanLII 88896 (NB WCAT)

In this case the matter went before the New Brunswick Appeals Tribunal the Injured worker representative effectively argued that the WCB did not properly show the injured worker did not have the injury, for it is presumed unless shown otherwise.


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20167949, 2016 (Re)

20167949 (Re), 2016 CanLII 54508 (NB WCAT)
In this case the matter went before the New Brunswick Appeals Tribunal the Injured worker representative effectively argued that the WCB did not properly show the injured worker did not have the injury, for it is presumed unless shown otherwise.
They make mention of several other cases which is very relevant to this issue.


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VSL Canada Ltd. v. Workplace Health Safety and Compensation Commission and Duguay
VSL Canada Ltd. v. Workplace Health Safety and Compensation Commission and Duguay et al 2011 NBCA 76 (CanLII)
Where they contend the Appeals Tribunal could not rely on the presumption found in s. 7(2) because, in its submission, the record features evidence that runs contrary to the hypothesis that the accident arose in the course of employment. With respect, I disagree. For evidence to be “evidence to the contrary” within the meaning of s. 7(2) it must tend to contradict or refute the presumption. Put another way, the evidence must be inconsistent with the presumption to qualify as “evidence to the contrary” (see Potocan Mining Co. v. New Brunswick (Workers’ Compensation Board) (1993), Equivocal evidence will not suffice (see Dunham v. Workmen’s Compensation Board (1967), The Worker's representative also referred to the Supreme Court of Canada case of British Columbia (Workers' Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 (CanLII). In that decision the Supreme Court of Canada ruled that "The presence or absence of opinion evidence from an expert positing (or refuting) a causal link is not, therefore, determinative of causation...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 occupational disease. It does mean, however, that it may suffice …"

The worker's representative also made reference to a section of a book Dr. Terence G. Ison, in Workers' Compensation in Canada, second edition​. In it they quote the following:
"Arising out of and in the course of. The presumption having the broadest application is that where an injury was caused by an accident that arose out of the employment it is presumed to have occurred in the course of the employment, unless the contrary is shown; and where an injury was caused by an accident in the course of the employment it is presumed that it arose out of the employment, unless the contrary is shown.80… Where an injury arose in the course of employment, the claim must be allowed unless there is affirmative evidence of an alternative cause, and evidence that the employment was not contributory. 83 This presumption would seem to relate to the determination of the facts. It has, however, also been used to resolve questions of interpretation of the Act."

The worker's representative also stated the following from the same book:
"3.3.28. Neglect of the presumption. In practice, this statutory presumption has commonly been ignored, and it has even been replaced by contrary presumptions in the processes of adjudication. For example, a Board doctor may render an opinion that the injury was not caused by the employment. That opinion may rest upon nothing except the absence of any positive data about employment etiology. When that happens, the statutory presumption is, in effect, reversed. The opinion imports presumption of the negative, while the Act prescribes a presumption of the affirmative. Yet the opinion may be applied by the adjudicator as evidence rebutting the presumption of employment causation. To reach conclusions in that way is clearly illegal!"

Thank you to Gerry Excellent submission!



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