It is rare that I read a Supreme Court of Canada decision where my initial reaction is “have you completely lost the plot?“, but unfortunately the Court’s decision in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority produced exactly that reaction. The SCC decided, in essence, that an administrative tribunal was free, using its “expertise” [even where it had none] to determine a cause for an illness even where the science could show no such causation, or even evidence of such causation beyond some correlation.  The problem is bluntly summarized by Coté JA in dissent at ¶ 52-53:

“The importance of these unanimous expert opinions cannot be overstated. Experts are responsible for providing decision-makers with precisely those inferences that decision-makers — due to the technical nature of the issues — are unable to forumlate themselves… [W]hile the Tribunal is not bound by the medical experts’ findings, it cannot simply disregard their uncontradicted conclusions. In the absence of any other evidence to the contrary, one may wonder how the Tribunal could find a causal link where the experts, together, could see none.”

[Citations omitted, but found in original.]

The majority decision is greatly troubling for a number of reasons:
1. It sets a judicial precedent that science isn’t necessary or conclusive in determining a scientific point.
2. It sets a judicial precedent that definitive evidence isn’t necessary or conclusive in determining a definitive legal point.
3. It sets a judicial precedent that a clear scientific finding of no connection can be ignored to legally create a connection.
4. It basically gives carte blanche to administrative tribunals to make a legal determination in the absence of evidence.

This last-mentioned holds the potential for tremendous michief down the road.  Many tribunals are already, in my opion, far too ready to do what they like in the face of the evidence or the law. To give them the SCC-blessed power to make determinations where the evidence doesn’t establish their conclusion is to give tribunals the surreal authority of Humpty Dumpty in Through The Looking Glass:

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

I think it fair to say that when the best description of what you have done is found in Alice, you have a serious reality problem.