Dec 122018
 

By Gerald

The following story supports my argument that you cannot provide 
presumptive status to some occupations and not to others. Click on the 
following link: https://www.cbc.ca/news/canada/sick-worker-groundbreaking-case-wsib-benzene-1.4649680


It is obscenely illogical to provide presumptive status to firefighters 
when other occupations have a greater risk than fire fighters. Truth be 
told, there need not be any occupational disease that requires evidence 
based on medical certainty which the Supreme Court has determined is too 
high a standard meaning that no one has to provide epidemiological 
evidence to support causation. Causation in the workers compensation 
system is any contributing factor which consists of a very broad base 
from a trivial cause to a probable cause. It need not be more probable 
than not which is the civil legal standard,not the legal standard in 
workers compensation systems according to the Supreme Court. There are 
no complex cases that are filed with WCB as in all claims the benefit of 
doubt is supposed to go to a worker meaning that if a cause is unknown 
and WCB cannot determine an alternate cause, the claim remains in a 
neutral state where the benefit of doubt goes to a worker. In the past 
and at present, if a cause is unknown, the claim is denied with no one 
questioning if the cause is unknown and WCB cannot provide an alternate 
cause, why is the claim denied as the benefit of doubt is by law 
supposed to go to the worker.

No occupation should be treated differently than any other occupation 
but unfortunately the Alberta Human Rights legislation in the preamble 
it states that all persons are equal in dignity, rights and 
responsibilities and then states in the same paragraph, that these 
rights are only extended to the so named protected classes and if a 
person does not fit in the so named classes, according to the AHRC there 
is no equal rights protection. You would think that instead of enacting 
laws that treat all persons equally rather than naming the classes that 
are protected would be the intelligent way to enact legislation. It 
makes no sense at all to keep adding specific classes rather than to 
simply enact legislation whereby all persons are treated equally.

I did file a human rights complaint when the presumption legislation was 
passed and the complaint was denied because occupations were not a 
protected class which means that the Government can pass laws providing 
differential treatment for any occupation that they feel should be 
provided differential treatment. If they felt that all MLA’s should not 
have to pay provincial taxes, could drink and drive, possess and use 
heroin, crack cocaine etc and no other occupation could do like wise, 
they could do so under the Human Rights Act. I do believe that under the 
Charter, Section 15.1, that presumptive status for any occupation 
according to a large consensus of lawyer would be struck down. Studies 
have shown that other occupations have far more of a risk for certain 
cancers than firefighters and a recent study has determined that 
firefighters risk of cancer is due to a genetic factor which predisposes 
them to cancers and in the U.S. some States are rescinding legislation 
because studies have determined that the only firefighters to get any 
cancer have a genetic link to cancer which predispose some firefighters 
to cancers while other firefighters without the genetic link have no 
more of a risk than any one else. By testing firefighters for this 
genetic link prior to employment, those candidates with the genetic link 
would not be hired thereby reducing or eliminating any risk.

When this bill was presented by Richard Magnus who I knew quite well 
from his days as my Alderman in Calgary, I told him that in Canada 
adjudication is based on an inquiry system which means that all persons, 
whether firefighters or not firefighters have presumptive status simply 
because when there is any doubt on any claim, and if there is no 
evidence to support an alternate cause a claim is considered to be in a 
neutral position, this establishes presumption. I explained to him that 
in the U.S., because adjudication is based on an adversarial model, the 
burden of proof was on workers which made it impossible for any worker 
to prove causation, thus because of their high profile and a feel good 
feeling for elected officials to gain favor with the electorate, 
presumption for firefighters was enacted. Mr. Magnus had no idea of the 
difference between an inquiry system and an adversarial system and was 
under the impression like many of his colleagues that when a worker 
filed a claim, they were the ones bringing forth an action and 
considered to be plaintiffs in the case and had the burden of proof.