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.
