By Jason Foster, AFL Staff

In early February, without much fanfare and with little public attention, a Court of Queen’s Bench judge in Medicine Hat issued a written decision that has the potential to radically shake Alberta’s WCB system.

In his 12 page decision, Justice MacLean, granted a group of six transit workers the right to sue their employer and other companies for a work-related disease. His decision also harshly criticized WCB for acting in a biased fashion.

"It cannot be said that the Board is independent insofar as the worker is concerned. It is a Board set up to protect the employers," said Justice MacLean in the decision.

MacLean goes on to state that WCB is operating in a manner that offends natural justice. "This is not a level playing field, it is not fair, and it offends the basic principles of natural justice."

Under Alberta law, all injuries and diseases related to the workplace fall under the WCB Act, which prohibits the suing of employers for work-related accidents. Justice MacLean argues that this prohibition is being used to prevent workers from receiving just compensation.

The six workers were exposed over a period of time to methanol and other dangerous chemicals. All developed multiple symptoms indicative of problems associated with chemical exposure. They applied for WCB benefits but were denied. Their appeals also failed. WCB did not dispute the exposure, and also acknowledged the existence of the medical symptoms, but claimed that the workers had failed to adequately demonstrate causation.

Having exhausted all avenues of appeal at WCB, the workers launched a lawsuit against the City of Medicine Hat and against 8 other corporations, 4 Medicine Hat City managers and the Federal and Provincial governments claiming negligence.

Justice MacLean only ruled on if the workers had a legal right to pursue their lawsuit. In addition to offending natural justice, MacLean argued that WCB’s process for determining causation is "less than comforting and of little assistance". MacLean stated that "the Court will not be limited by the so-called principles … which bind the Board."

The consequences of this decision are mixed for Alberta workers, says Audrey Cormack, President of the AFL. "First I want to say that I am thrilled someone in authority has finally acknowledged what we have been saying for five years, that WCB has become an employer’s organization."

Cormack congratulates MacLean for making clear that WCB has been operating in a manner that puts dollars ahead of injured workers.

She also points out that the decision has some potential downsides. "I want to make sure this decision does not unravel the Meredith principles, especially the commitment to no fault and to universal coverage. The courts are hardly friendly to the concerns of working people."

"There are many questions needing adequate answers," adds Cormack.

Cormack indicates that the AFL will be using the decision to persuade WCB to make some crucial changes to its policies and procedures. "This is a wake-up call for WCB. They need to revamp their claims adjudication process and their definition of causation, among other things."

The AFL and the WCB Trade Union Coalition, a group of unions gathering to address WCB issues, will be pressuring the WCB and the Minister of Labour to address the concerns raised by Justice MacLean.

"The key is using the decision for the benefit of working people, not just to transfer our issues to the courts," Cormack concludes.