Highlights of Noteworthy Decisions

Decision 852 19 I
T. Mitchinson - M. Lipton - J. Crocker
  • Evidence (admissibility) (expert evidence)
  • Evidence (expert) (qualification)

The worker was injured in September 2015. The employer appealed a decision of the Appeals Resolution Officer granting the worker entitlement. The issues were: whether the worker was in the course of employment at the time of the accident; if so whether consumption of alcohol took the worker out of the course of employment; and whether s. 17 of the WSIA was relevant to the claim.

In a pre-hearing conference, the Panel considered whether a toxicology report from the employer should be admitted into evidence.
The test for admissibility of expert evidence is set out by the Supreme Court of Canada in R. v. Mohan: the evidence must be relevant; the evidence must be necessary to assist the trier of fact; there must be no exclusionary rule prohibiting receipt of the evidence; and the evidence must be given by a properly qualified person. A more recent judgement of the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., builds on Mohan and adds an additional gatekeeper analysis of considered a cost-benefit analysis to assess whether the value of the expert evidence supersedes its prejudicial impact.
The report was relevant; it would be helpful in determining whether the worker's blood alcohol content at the time of the accident was sufficient to remove him from employment. The first criterion in Mohan was satisfied.
Although the worker admitted, through a guilty plea to the criminal charge of impaired driving, an argument remained concerning the impact of the amount and timing of consumption on the question of whether the worker's conduct removed him from the course of employment. This evidence was scientific in nature and was not within the expertise of the Panel, thus satisfying the second criterion in Mohan.
It was agreed that there was no exclusionary rule prohibiting receipt of the report.
The toxicology report was from a pharmacist. He had an undergraduate degree in biomedical science and a PhD in pharmacy. He had clinical experience as a pharmacist with emphasis on pharmacotherapy, pharmacodynamics and kinetics. These areas of practice allowed him to speak credibly on issues of dose-related effects of alcohol on bodily function. The Panel found that he was a properly qualified person to provide the evidence contained in his report.
As to the cost-benefit analysis in White Burgess, the Panel found no indication that the value of the evidence was superseded by any potential impact on the worker's case. The evidence appeared to represent an objective assessment of the scientific date associated with alcohol absorption.
The Panel concluded that the report is admissible as expert evidence in the appeal.