Jan 222018

By Gerald

Click on the following link: https://www.alberta.ca/release.cfm?xID=522899A395324-C302-107C-BCF199961973BE25

While I have nothing against presumptive status for all workers, question is whether it is legal to provide presumptive status to one occupation and not to all other occupations. Unfortunately, under Alberta Human Rights Legislation as is other provincial and federal legislation it is legal to discriminate based on a person’s occupation as a person’s occupation is not within the protected grounds or group characteristics that are protected. In other words if a person or group is not within the protected grounds under provincial legislation or federal legislation, then equality does not apply, however under the charter, section 15.1 of the Charter, every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. 

The Alberta Human Rights Act is like any other poorly written legislation. In the introduction, the “Act” states that it is a fundamental principle and a matter of public policy that all persons are equal in: dignity, rights and responsibilities. The “Act” then contradicts itself then by excluding equal protection for every one other than the individuals or groups that fit into the protected categories. Occupation is not included in the protected category. Oddly enough, nor was gender identity, gender expression, or sexual orientation which was added, yet the Government would not add occupation. I did file a human rights complaint after presumptive status was enacted in legislation for firefighters and although the Alberta Human Rights Commission agreed that the legislation resulted in differential treatment, by law they did not have jurisdiction to include occupation in the “Act”. My complaint was dismissed which in all fairness was a good decision. I was advised to file a complaint with the Office of the Ombudsman which I did. They also agreed that the legislation did result in differential treatment and they could not change legislation. It was recommended that I contact the Minister of Justice Jonathon Denis whose office responded but suggested that there was nothing they could do which in reality was that they would not do anything because if they did add occupations to the protected category, the Government and the opposition who had voted in favor of the Magnus “Bill” would look like a bunch of morons 

The introduction of presumptive status for firefighters was first introduced in Canada by  the Manitoba government by copying the introduction of presumptive status for firefighters by their neighbor, Minnesota. Problem with this is, in Canada adjudication in all provinces is supposed to be based on an Inquiry system not an Adversarial system which is used in the U.S. where the burden of proof is on the worker and the employer. In Canada, in an Inquiry system, the burden of proof both for and against is on the “Board” Some how, the system in Canada has gone from an Inquiry system to an Adversarial system and the burden of proof has been illegally placed on the worker.

Firefighters by law, should have never had to prove causation and employers did not have to prove contrary which is the way an Inquiry system works. Because the benefit of doubt has to always go to the worker, all workers have presumptive status when the claim remains in the neutral position.  Because no one knows what causes cancer, all claims would remain in the neutral state. If in fact we knew what causes cancer, we would have come up with a cure by now. Providing presumption status only for fire fighters  for myocardial infarction is another gross injustice to other workers when workers such as office workers are more at risk than a firefighter due to the sedentary nature of their job. The same goes for PTSD which can happen to anyone even when diagnosed with a terminal illness such as cancer. Further to this is in proving causation, adjudication is supposed to be based on a balance of probability and not on medical probability which is far higher than the legal standard. It does not have to be proven that any occupational group has to prove that they are double the general population risk, triple or 20 times the risk. In fact, if epidemiological studies would perform a risk analysis on most occupational groups and compare the risk to the general population, it would be determined that there is a higher risk. For example: workers performing repetitive work over prolonged periods of time have 20 times the risk of cumulative trauma disorders such as carpal tunnel syndrome, tendinitis, pulled ligaments or any other injury to the upper extremities.  As well, these same workers have a much higher risk of vascular disturbances to the upper extremities ( Schedule B Section 8) when blood flow to vital parts of the upper extremities is reduced resulting in abnormal bone formation during the bone remodeling process that is subject to stress fractures that would not affect normal bone. This results in sever medical conditions such as avascular necrosis of the scaphoids (Preisers disease) or avascular necrosis of the lunate (Kienbocks disease) which are recognized by experts as being work related but never accepted by WCB, DRDRB and the Appeals Commission who do not have any medical expertise and wouldn’t know Preiser’s disease from hemorrhoids. Section 24(6) of the WCA deems that “all” workers employed in an industry within the last 12 months are deemed by the regulations to have caused that accident and thus is not discriminatory questioning why the Government provided presumption status only to firefighters and first responders which is discriminatory. Epidemiological studies have also determined that workers in occupations where they are exposed to harmful carcinogens on a daily basis have a much higher risk than firefighters. That being the case then why is the government not enacting presumptive status for workers in these occupations. Would the Government bring in presumptive legislation for firefighters and first responders in the criminal justice system where only firefighters and first responders would be presumed innocent until proven guilty and all other individuals would be considered guilty and have to prove their innocence.

The presumption for firefighters was introduced by Richard Magnus who I knew quite well as he was my Alderman in Calgary. We argued over his introduction of the “Bill” as in my opinion, under an Inquiry system, firefighters did not have to prove causation and furthermore the “Bill” was illegal under the Charter. Richard, not being a lawyer or having any knowledge of the historic agreement specific to an Inquiry system and burden of proof  had no idea what I was talking about and went ahead and sponsored the “Bill” which was enacted by the Conservative Government when Clint Dunford was the Minister in charge of WCB. I also argued with him and he also had no idea what I was talking about. The issue specific to how long a firefighter must work in their occupation before presumptive status begins has gone to the courts in several states as being unconstitutional or discriminatory. A firefighter was diagnosed with cancer after two years of employment and the required time was ten years. The court determined that length of exposure was discrimination ion and overturned the denial of his claim. 

As far as burden of proof goes, workers do not have any powers of investigation, so why would any one put the burden of proof on some one who by law and policy makes it illegal to gather evidence. This is supported by the WCA Section 17(1) that gives WCB “exclusive” jurisdiction to examine, inquire into, hear and determine all matters. Surely, the Government knows that the word exclusive jurisdiction excludes everyone including workers from gathering evidence, yet the Government sits back and do nothing when WCB, DRDRB and the Appeals Commission places the burden of proof on workers.

If in fact any worker whose claim was turned down would take the issue of presumptive legislation to the courts contrary to Section 15.1 of the Charter which provides presumptive status to an identifiable occupational group and not providing presumptive status to all occupational groups according to numerous lawyers, the worker would win.