COURT FILE NO.: 138/06

DATE: 20070329

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C., LANE AND R. SMITH JJ.

B E T W E E N:

TORONTO PROFESSIONAL FIREFIGHTERS’ ASSOCIATION

Howard Goldblatt, for the Applicant

Applicant

• and -

CITY OF TORONTO

Robert Fredericks, for the Respondent

Respondent

HEARD: December 4, 2006

REASONS FOR DECISION

R. SMITH J.:

[1] The Toronto Professional Firefighters’ Association (the “Association”) has brought an application for judicial review of the decision of arbitrator Dana Randall. In his decision the arbitrator determined that the estate of District Fire Chief Bruce Ritchie (“Ritchie”) was not entitled to receive the accidental death benefits, provided for in the collective bargaining agreement (the “C.B.A.”) with the City of Toronto (the “City”).

[2] Ritchie died in 1998 of renal cancer after working as a firefighter for the City for over 20 years. On January 27, 2004 the Workplace Safety Insurance Board (“W.S.I.B.”) found that Ritchie’s work as a firefighter was a significant contributor to the development of his renal cell cancer.

[3] The arbitrator applied common-law insurance principles to determine whether or not Ritchie’s death was accidental. He concluded that Ritchie’s death from renal cancer caused in part by his exposure to toxic substances while working as a firefighter was not accidental. He concluded that Ritchie died as a result of an illness, which was not unexpected or alternatively he died from natural causes, and as a result he held that Ritchie’s estate was not entitled to the “accidental death benefit” provided for in the collective Bargaining Agreement.

[4] The Association submits that a standard of correctness should be applied to the arbitrator’s application of common law insurance principles and his conclusion that Ritchie’s death was not accidental. The Association also submits that the arbitrator erred when he held that Ritchie’s death was not accidental. The City agrees that the standard of correctness may apply to the arbitrator’s application of common law insurance principles, but argues that notwithstanding any error in applying the common law principles the arbitrator’s decision finding that Ritchie’s death was not accidental, taken as a whole, is not patently unreasonable.

[5] The arbitrator also applied similar common law insurance principles to conclude that Ritchie was not “killed in the line of duty” and therefore his estate was not entitled to these benefits either.

[6] The arbitrator also ruled that the questions of whether Ritchie’s estate was entitled to receive the “accidental death benefit” and the “killed in the line of duty” benefits (collectively referred to as “accidental death benefits”) under the collective agreement were arbitrable issues. The City argues that the arbitrator erred when he decided that the above questions were arbitrable, and submits that the accidental death benefits were category 3 benefits in the commonly referred to case of Brown and Beatty, and not category 2 benefits as found by the arbitrator. The City argues that a standard of correctness should apply to this part of the arbitrator’s decision. The Association submits that a standard of patent unreasonableness should apply to this part of the decision and that the arbitrator’s finding that the employer was to provide specific accidental death benefits, without necessarily purchasing a policy of insurance, is not patently unreasonable.

Issues

[7] The following issues are raised in this application for judicial review:

1. Which collective bargaining agreement applies; the agreement existing at the date of Ritchie’s death or the successor agreement with the new City of Toronto?

2. Is the question of whether or not Ritchie’s estate is entitled to the accidental death benefits under the collective agreement, arbitrable?

3. Was Ritchie’s death an “accidental death” and if so should the arbitrator’s decision be set aside?

4. Was Ritchie “killed in the line of duty” and if so should the arbitrator’s decision be set aside?

Background Facts

[8] District Fire Chief Bruce Ritchie began working for the Toronto Fire Department in 1971. He worked as a firefighter for over 25 years until his death at age 53 on August 18, 1998.

[9] Ritchie died from renal cancer. On January 27, 2004 the W.S.I.B. found that Ritchie’s death from renal cancer was causally connected to firefighting. This fact was accepted as correct by the City in their factum.

[10] The W.S.I.B. made its decision based on studies showing an increased incidence of renal cancer in firefighters who worked prior to the late 1980’s. During this time the risk was known to be high for hazardous exposure, the dangers were unknown, and the protective equipment was unsafe. The Board found that Ritchie’s career as a firefighter was a significant contributor to the development of his renal cancer.

[11] Following his death Ritchie’s widow received the basic life insurance benefits which Ritchie was entitled under the terms of the collective agreement (two times his annual salary).

[12] Ritchie’s widow made a claim for survivor and other benefits under the Workplace Safety and Insurance Act following Ritchie’s death. This claim was initially denied because the W.S.I.B. was unable to establish a causal relationship between Ritchie’s renal cancer and his work as a firefighter. However, on January 27, 2004 (5 ½ years after Ritchie’s death) the W.S.I.B. allowed the claim on the basis of studies showing that renal cancer was causally connected to firefighting.

[13] The W.S.I.B. set Ritchie’s “date of accident” at September 29, 1997, which was the date he first sought medical attention for the symptoms, which were later diagnosed as renal cancer.

[14] The City then contacted its insurer to inquire as to whether the insurer would pay Ritchie’s estate the accidental death benefits provided for in article 21(f) and (g) of the collective agreement. The insurer refused to pay the accidental death benefits on the basis that Ritchie’s death was not an accident as defined in the insurance policy with the City. The City’s insurance policy provided that the insurer would pay a benefit for death caused “solely by external, violent and accidental means (independently of any physical illness or infirmity)…” occurring during the period of insurance or within 365 days from the date of the accident.

[15] The Association then filed a grievance, alleging that Ritchie’s estate was entitled to the accidental death benefits and that the City was required to pay the benefits, even if the insurer refused to pay the accidental death benefits.

Old and New Collective Agreements

[16] Until the date of his death Ritchie was a member of Local 113, which had entered into a collective agreement with the City (the “old collective agreement”). On January 1, 1998 (7 ½ months before Ritchie’s death) the City of Toronto amalgamated with five adjoining cities, which operated their own fire departments, with separate firefighter associations and collective agreements.

[17] The new City of Toronto became the successor employer and inherited the six bargaining units and collective agreements. Ritchie became an employee of the new City of Toronto upon amalgamation. The Public Labour Relations Transition Act 1997 provided that each individual employee would continue to be governed by the terms of the collective agreement which had been signed with each city before amalgamation, until a further collective agreement was signed with the new City of Toronto.

[18] On December 2, 1998 (3 ½ months after Ritchie’s death) the former six bargaining units for the Firefighters’ Associations were merged into a single successor bargaining unit called Local 3888. A collective agreement (the “new collective agreement”) was entered into between the new City of Toronto and Local 3888 dated August 20, 2003.

[19] Paragraph 21(f) of the old collective agreement provided “That the group life insurance referred to in sub-clause (d) hereof shall be supplemented by an ‘Accidental Death Benefit’ in an amount equal to the total amount of such employee’s insurance thereunder.”

[20] Paragraph 21(g) of the old collective agreement stated “That the group life insurance referred to in sub-clause (d) above shall be supplemented by an additional two times salary of ‘Accidental Death Benefit’ in the event a member of Local 113 is killed in the line of duty.”

[21] Paragraphs 16.04(b) and (c) of the new collective agreement stated as follows: “That the group life insurance will be supplemented by four times the employee’s annual salary in the event that a member of Local 3888 is killed in the line of duty or dies as a result of an occupational illness or injury.” If the new collective agreement applied, Ritchie’s estate would be entitled to receive the accidental death benefits.

Analysis

Issue #1 – Which collective agreement applies; the agreement existing at the date of Ritchie’s death or the new successor agreement with the new City of Toronto?

[22] The arbitrator held that the old collective agreement applied as Ritchie died before the new collective agreement was agreed upon, and therefore he found that Ritchie could not have been an employee under the new collective agreement.

[23] The Association argues that the new collective agreement should apply because the life and death benefit insurance policy, purchased by the City, is a claims-made policy and Ritchie’s estate only became aware of their ability to make a claim on January 27, 2004, after the W.S.I.B. recognized that Ritchie’s renal cancer was causally related to his work as a firefighter.

[24] Paragraph 16.04(c) of the new C.B.A. provides that a supplemental death benefit of four times the employee’s annual salary will be paid in the event that a member of Local 3888 is killed in the line of duty or dies as a result of an occupational illness or injury. Therefore if the new C.B.A. applied Ritchie’s estate would be entitled to receive the supplemental death benefits.

Standard of Review

[25] Applying a pragmatic and functional test as set out by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 paragraphs 29-38 and Dr. Q. & College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at 238, the Court must consider the four contextual factors; the presence or absence of a right of appeal or a privative clause; the purpose of the legislation as a whole and the particular provision; the expertise of the tribunal relative to a reviewing Court; and the nature of the question: law, fact or mixed law and fact. Considering that there is a privative clause, that a decision of which collective agreement should apply is squarely within the arbitrator’s area of expertise, the purpose of the labour legislation is to resolve labour issues quickly, inexpensively, and finally, the nature of the question is one which arbitrators decide on a regular basis and involves a question of fact or mixed fact and law. In balancing all of these factors I find that the test to be applied is one of patent unreasonableness to this part of the arbitrator’s decision.

[26] I find that the arbitrator’s decision is not patently unreasonable or incorrect for the following reasons:

a) Mr. Ritchie died on August 18, 1998 while the old collective agreement was in effect between the City and the Association. In the decision of Fort Frances (Town) v. C.U.P.E., Local 65 (Lindberg), [1997] 69 L.A.C. (4th) 160 (Solomatenko) at page 170 the arbitrator held that an individual seeking a remedy under a collective agreement, must be covered by that agreement, and former employees cannot grieve under a subsequent collective agreement. In this case Ritchie’s estate seeks to grieve under a subsequent collective agreement which was entered into after his death.

b) The new collective agreement was not signed until August 20, 2003 and was effective from January 1, 1999, both of which occurred after Ritchie’s death;

c) In order to be entitled to receive the supplemental death benefits set out in paragraph 16.04(c) of the new C.B.A., Ritchie had to be a member of Local 3888. Mr. Ritchie died before the new amalgamated association, Local 3888, came into existence on December 2, 1998 and therefore he could not have been and never was a member of Local 3888.

d) Whether the supplemental insurance policy contracted for by the City under the new collective agreement was a “claims-based or an occurrence-based” policy is not relevant, as Mr. Ritchie was never a member of Local 3888 due to his death on August 18, 1998.

[27] I therefore reject the Association’s position that the new collective agreement applied and find that the arbitrator’s decision in this regard was correct and not patently unreasonable.

Issue #2 – Is the question of whether or not Ritchie’s estate is entitled to the accidental death benefits under the terms of the collective agreement, arbitrable?

[28] The City submits that the parties intended that the City would provide the accidental death benefits outlined at paragraphs 21(f) and (g) of the collective agreement by way of a contract with an insurance company and that the City was only responsible for payment of the insurance premiums. The City argues that if this was the intention of the parties, then the supplementary accidental death benefits would fall into category 3 benefits, of the commonly referred to four categories in Brown and Beatty, Canadian Labour Arbitration, 4th ed. (Brown and Beatty), at paragraphs 4: 1400-1440, and as such would not be arbitrable. Only category 2 and 4 benefits are arbitrable.

[29] The arbitrator held that the accidental death benefits, set out in paragraphs 21(f) and (g) of the collective agreement, provided for specified benefits to be provided to the employee and were therefore category 2 benefits as defined in Brown and Beatty, supra. The arbitrator held that paragraphs 21(f) and (g) did not state that the employer would only be responsible for the payment of insurance premiums. The arbitrator considered the plain meaning of the language used in paragraphs 21(f) and (g) of the collective agreement.

[30] The arbitrator came to the conclusion that the claim for accidental death benefits was arbitrable for the following reasons:

a) While the basic life insurance specified under paragraph 21(d) of the collective agreement was to be provided by the City by way of a contract with a life insurance company and the employer undertook to pay premiums for same, paragraphs 21(f) and (g) only state that the employer shall provide an accidental death benefit to the employee.

b) Paragraphs 21(f) and (g) of the collective agreement do not state that the City will provide the accidental death benefit by way of a plan of insurance or contain any obligation for the City to pay premiums for such a plan of insurance;

c) The reference in 21(f) and (g) to the group life insurance in sub-clause (d) only states that the insured benefit in 21(d) is being supplemented, and does not state that it is being supplemented through a plan of insurance;

d) The parties specifically stated that the benefits set out in paragraphs 21(a), (b), (c), (d), (h) and (l) were to be provided by way of a contract for insurance and in contrast paragraphs 21(f) and (g) did not specify that the benefits were to be provided by way of a plan of insurance;

e) The City self-insured some other benefits which it agreed to provide pursuant to the collective agreement;

f) The arbitrator considered the plain and ordinary meaning of the words used in paragraphs 21(f) and (g).

[31] The City argues that the arbitrator’s decision, that Ritchie’s claim for accidental death benefits under the collective agreement was arbitrable, is incorrect, and alternatively patently unreasonable for the following reasons:

a) Paragraphs 21(f) and (g) of the collective bargaining agreement both refer to the insurance policy mentioned in paragraph 21(d) of the collective bargaining agreement;

b) The term “Accidental Death Benefit” is not defined in the collective bargaining agreement, other than defining the amount of the benefit and it is in quotations in paragraph 21(f). The City asks the Court to infer that the parties intended that the accidental death benefits were to be provided by way of an insurance plan and to infer that the definition of “accidental death” was that specified in the insurance policy with Lloyds of London;

c) The term “killed in the line of duty” was also not defined in the collective agreement;

d) The City did purchase a group life insurance policy with Lloyds of London which contained an “Accidental Death Benefit” and a “killed in the line of duty” benefit. The City argues that it would not have purchased a life insurance benefit with a rider for accidental death benefits if it intended to provide the accidental death benefits without the benefit of an insurance plan.

Standard of Review

[32] The City submits that a standard of correctness should be applied to the arbitrator’s decision that the Ritchie’s claim was arbitrable, and that the arbitrator was incorrect in his conclusion. The Association submits that the standard of review is one of patent unreasonableness, and argues that the arbitrator’s decision that the Ritchie’s claim was arbitrable cannot be found to be patently unreasonable or absurd.

[33] In Pushpanathan, supra, and in other decisions the Supreme Court of Canada has held that a “pragmatic and functional” balancing of four factors should be conducted in order to determine the appropriate standard of review to be applied in a given case. The four factors are as follows:

i) the presence or absence of a right of appeal or privative clause;

ii) the purpose of the legislation as a whole and of the particular provision;

iii) the expertise of the tribunal relative to a reviewing Court; and

iv) the nature of the question before the tribunal.

i) Privative Clause

[34] The Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A., contains a privative clause which states that the arbitrator’s decision will be final and binding and which is a factor in favour of a test of patent unreasonableness.

ii) The purpose of the legislation

[35] The purpose of the Labour Relations Act is to allow employers and employees to resolve issues of entitlement to benefits under a collective agreement, as well as other issues, quickly, inexpensively and finally. This favours applying a standard of patent unreasonableness.

iii) Expertise of the Tribunal Relative to Reviewing Court

[36] A labour arbitrator has greater expertise than the Courts in interpreting the provisions of a collective bargaining agreement and applying labour law principles. The arbitrator would have experience in deciding whether benefits are to be provided by way of a contract of insurance, and are therefore a category 3 benefit or a benefit to be provided by the employer and a category 2 benefit, as categorized in the case of Brown and Beatty, supra. This aspect of the decision engages the arbitrator’s special expertise, and is the type of work usually done by labour arbitrators, namely deciding what benefits are to be provided by the employer by interpreting the provisions of a collective agreement. This factor favours applying a test of patent unreasonableness.

iv) The nature of the question

[37] The question is one of defining a category of benefit under the four categories set out in the case of Brown and Beatty under a collective agreement is a question of mixed fact and law. The nature of the question does include some legal aspects but involves a subject matter which arbitrators deal with on a regular basis as part of their work. This factor favours applying a test of patent unreasonableness.

[38] Notwithstanding the reasons advanced, which support the City’s position that the parties intended to provide the accidental death benefit by way of a group life insurance policy, and the City’s argument that paragraph 21(f) and 21(g) of the collective agreement were actually intended to be sub-paragraphs of 21(d) instead of separate paragraphs, this is not how the collective agreement was drafted. Both paragraphs 21(d) and 21(f) were drafted as separate paragraphs in the collective agreement and simply do not state that the accidental death benefits were to be provided by way of a policy of insurance.

[39] In the case of Parry Sound (District) Social Services Administration v. O.P.S.E.U., Local 324 (2003), 2003 SCC 42, 230 D.L.R. (4th) 257 (S.C.C.) at paragraph 11 the Supreme Court of Canada held that when deciding whether a question is arbitrable the test or review is one of patent unreasonableness and stated as follows:

When an arbitration board is called upon to determine whether a matter is arbitrable, it is well established that a reviewing court can only intervene in the case of a patently unreasonable error:

Having applied the functional and pragmatic analysis and considering the statements in the Parry Sound decision, supra, I conclude that the appropriate test to apply to the arbitrator’s decision of whether the question of entitlement to accidental death benefits is arbitrable, is one of patent unreasonableness.

[40] Given that several factors listed above support the arbitrator’s decision, I find that his decision was not patently unreasonable and was not irrational or absurd.

Issue #3 – Was Ritchie’s death an “accidental death”?

[41] In order to decide whether Ritchie’s death was accidental, the arbitrator applied common law insurance principles and applied the principles set out in the cases of Martin and Wang (citations below), to arrive at the conclusion that Ritchie’s death was not accidental. The arbitrator concluded that Ritchie’s death was either expected or resulted from natural causes.

[42] At page 21 of his decision the arbitrator stated as follows:

… There can be little doubt that the parties have simply imported terminology to portray them, that is common law insurance language. I am now placed in the position of having to construe that language without the benefit of a plan, which would provide definitional and eligibility guidance … there is nothing in the collective agreement itself which sheds light on the meaning given to those terms.

When the arbitrator found that Ritchie’s claim was arbitrable, it meant that the employer was required to provide the accidental death benefits to the employees, without limiting its responsibility to paying premiums for a plan of insurance. The arbitrator also recognized that an insurance policy would have contained definitions to determine eligibility and he found that the terms of the collective agreement offered no assistance.

[43] As a result the arbitrator was forced to look outside of the collective agreement and the Labour Relations Act to apply principles of common law insurance language (page 22 of decision) to determine the meaning of the term “accidental death benefit”. The arbitrator considered the definition in Black’s Law Dictionary and the two leading common law cases on the definition of accidental death, namely the Supreme Court of Canada decision in Martin v. American International Assurance Life Co., 2003 SCC 16, [2003] 1 S.C.R. 158 and the Ontario Court of Appeal decision in Wang v. Metropolitan Life Insurance Co., [2004] 72 O.R. (3d) 161 (C.A.). The arbitrator concluded that the term “accident” does not include “illness”, however caused.

Standard of Review

[44] The Association submits that different standards of review apply to different types of decisions made by an arbitrator in the course of a proceeding, and argues that typically the findings of a board of arbitration pertaining to the interpretation of a statute or the common law will be reviewable on a standard of correctness. The City does not disagree that a standard of correctness may apply when an arbitrator applies common law insurance principles to interpret the meaning of accidental death, but it submits that the arbitrator’s decision is not patently unreasonable overall, even if he made an error in applying the common law provisions.

[45] In the case of Toronto (City) v. C.U.P.E., Local 79, [2001] 55 O.R. (3d) 541 (C.A.) at paragraph 22 aff’d 2003 SCC 63, [2003] 232 D.L.R. (4th) 385 S.C.C., Doherty J.A. quoted Iacobucci J. in Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 at page 187-188 with approval, when he stated as follows:

While the Board may have to be correct, in an isolated interpretation of external legislation, the standard of review of the decision as a whole, if that decision is otherwise within its jurisdiction, will be one of patent unreasonableness. Of course, the correctness of the interpretation of the external statute may affect the overall reasonableness of the decision.

[46] In Toronto (City), supra, Doherty J.A. goes on to state as follows:

While Iacobucci J. spoke of the “isolated interpretation of external legislation” his words have equal application to a tribunal’s interpretation of common law principles that do not engage the expertise of the tribunal.

This is precisely what the arbitrator does in this case, where he applies common law insurance principles, an area which he does not have any special expertise.

[47] The following four factors must be considered to apply a pragmatic and functional analysis to determine the appropriate standard of review:

i) Privative Clause

In this case there is a privative clause. This factor supports applying a standard of patent unreasonableness.

ii) The purpose of the legislation

The purpose of the Labour Relations Act is to resolve labour issues quickly, finally and inexpensively for issues in the area of a labour arbitrator’s expertise. When the arbitrator steps outside of his area of expertise and applies common law insurance principles, then the purpose of the legislation would be consistent with having common law principles applied correctly.

iii) Special expertise relative to the reviewing Court

In this case the arbitrator has no special expertise in applying common law insurance principles. This area is outside of the arbitrator’s empowering statute and this is not an area where the arbitrator is more qualified than the reviewing Court, and where deference should be shown to the arbitrator’s decision, due to special expertise. The relative expertise is the “most important factor” according to Pushpanathan, supra, when applying the functional and pragmatic analysis. This factor strongly supports applying a standard of correctness in this circumstance, as the arbitrator does not have any special expertise in interpreting common law insurance principles.

iv) The nature of the question

The question involves the application of common law insurance principles to determine the meaning of “accidental death benefits”, and involves a question of law. The arbitrator entered an area outside of his empowering statute, beyond the provisions of the collective agreement and beyond his usual functions, when he proceeded to apply common law insurance principles, where he had no special expertise. Applying common law principles to a fact situation, is exactly what Courts do on a regular basis and is not what labour arbitrators deal with on a day-to-day basis. The fact that the question involves deciding a question of law, favours applying a standard of correctness.

[48] The following cases have held that different standards of review may apply to different parts of an arbitrator’s decision:

Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324 (2003), 2003 SCC 42, 230 D.L.R. (4th) 257 (S.C.C.), at para. 21

Toronto (City) v. C.U.P.E., Local 79 (2001), 55 O.R. (3d) 541 (C.A.), at paras. 22-24, 32, affirmed (2003), 2003 SCC 63, 232 D.L.R. (4th) 385 (S.C.C.), per Arbour J., at paras. 13-16

Toronto (City) Board of Education v. O.S.S.T.F., District 15 (1997), 144 D.L.R. (4th) 385 (S.C.C.), at para. 39

Trent University Faculty Assn. v. Trent University (1997), 35 O.R. (3d) 375 (C.A.), per Laskin J., at p. 385-387

Better Beef Ltd. V. MacLean, [2006] O.J. No. 2146 (Div. Ct.), at para. 36

[49] In Toronto (City) v. C.U.P.E., supra, the Supreme Court of Canada held that an arbitrator had no special expertise when applying common law principles derived from Judge-made law. I agree with the Applicant’s submission that the arbitrator has no special expertise in applying common law insurance principles, as this activity is not connected to the arbitrator’s field of expertise, which is in the labour law field.

[50] In Barrie Public Utilities v. Canadian Cable Television Association, 2003 SCC 28, [2003] 1 S.C.R. 476 the Court stated as follows:

Deference to the decision maker is called for only when it is in some way more expert than the Court and the question under consideration is one that falls within the scope of its greater expertise.

In this case the arbitrator has no greater expertise than a Court in applying common law insurance principles and as a result deference is not called for in this case.

[51] Having applied the functional and pragmatic analysis, I adopt Doherty J.A.’s test as set out in Toronto (City) v. C.U.P.E., supra, where he quotes Iacobucci J. and I find that a standard of correctness applies to an arbitrator’s decision when applying common law insurance principles to interpret the meaning of “accidental death benefits” in the collective bargaining agreement. If the arbitrator’s application of the common law insurance principles is incorrect, the Court must then determine if the decision as a whole becomes patently unreasonable.

Was the arbitrator correct when he decided that Ritchie’s death was not “accidental”?

[52] The arbitrator applied the Supreme Court of Canada’s decision in Martin v. American International Assurance Life Co., 2003 SCC 16, [2003] 1 S.C.R. 158 (“Martin”) and the Court of Appeal’s decision in Wang v. Metropolitan Life Insurance Co., 72 O.R. (3d) 161 (“Wang”) to conclude that “accidental death” does not contemplate death as a result of illness because the arbitrator held that the latter is not “unexpected” and therefore not accidental, or alternatively Ritchie’s death was from natural causes and therefore not accidental.

[53] The evidence before the Court was that the Workplace Safety and Insurance Board found, on the basis of their studies, that Ritchie died of renal cancer, which was causally connected to his work fighting fires during the 20 years he worked as a firefighter for the City. The City agrees with this finding in their factum. Ritchie’s renal cancer was at least partly caused as a result of a single or multiple exposures to toxic substances, while working as a fireman for the City of Toronto during the previous 20 years, but especially before the 1980’s when the dangers were unknown and the safety equipment was unsafe.

The Martin Decision

[54] In the Martin decision, supra, a physician, who developed an addiction to opiate medications, died after taking an overdose of Demerol by an intravenous injection. The physician’s life insurance policy stipulated that coverage would be provided only for deaths effected through “accidental means”. The term “accidental means” was not defined in the insurance policy but the accidental death benefit provision did state that the benefit would be payable upon receipt of due proof that the life insured’s death resulted directly, and independently, of all other causes from bodily injury effected solely through external, violent and accidental means.

[55] The Supreme Court of Canada held that “accidental means” was not a subclass of “accidental deaths” and held that both phrases connote a death which is in some sense unexpected. The Court referred with approval to the dissent of Cardozo J. in Lanchess v. Phoenix Mutual Life Insurance Co. 21 U.S. (491) (1934) at 501: “If there was no accident in means there was none in the result” and concluded that “We must look to the chain of events as a whole, and we must consider whether the insured expected death to be a consequence of his action and circumstances.”

[56] In Martin, supra, the Supreme Court held that death by accidental means is death that has been brought about unexpectedly. The Court adopted the following description from Lord Macnaghten in Fenton v. J. Thorley & Co., [1903] A.C. 433 (H.L.) at p. 448 where he stated: “The expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.”

[57] In Martin, supra, the Supreme Court held that the pivotal question was whether the insured expected to die. In this case there is no evidence that Ritchie expected to die of renal cancer after working for 20 years as a firefighter for the City. I would infer that Ritchie and other firefighters did not expect to die from renal cancer as a result of working as a firefighter, because the danger was unknown before the late 1980’s.

[58] In Martin, supra, the Supreme Court also held that a death could still be considered accidental, even though the person engaged in dangerous or risky behaviour. At paragraph 20 the Court stated as follows:

It follows that death is not non-accidental merely because the insured could have prevented death by taking greater care, or that a mishap was reasonably foreseeable in the sense used in tort law. Nor does a death that is unintended become non-accidental merely because the person engaged in a dangerous or risky activity.

In this case Ritchie and the other firefighters engaged in a dangerous and risky activity but they did not expect to die from their work as firefighters.

[59] In the Martin case, supra, the Court noted that in Canadian Indemnity Co. v. Walkem Machinery & Equipment Ltd., [1976] 1 S.C.R. 309, at page 316, the Court emphasized that the jurisprudence assigns a generous meaning to “accidental” in the absence of restrictive language to the contrary in an insurance policy. This is exactly the situation before us in this case, due to the arbitrator’s finding that the City must provide the accidental death benefits without necessarily purchasing an insurance policy, which would have included a definition of “accidental death”. Since there is no restrictive definition in the collective agreement or in an insurance policy, I find that a generous meaning must be given to “accidental”.

[60] The arbitrator analyzed the case law as showing that “accidental death” does not include death as a result of illness, because such a death is not unexpected and hence cannot be “accidental”. The correct question to ask is: Did the employee expect to contract a fatal illness, namely renal cancer, as a result of engaging in the activity of working as a firefighter? There was no evidence to support the arbitrator’s conclusion that Ritchie expected to contract the fatal illness of renal cancer as a result of working as a firefighter. In fact the evidence before the Court from the W.S.I.B. was that the risk was unknown. I would also apply a common sense approach to conclude that Ritchie and other firefighters would have been aware that there were risks and dangers in performing their work, but they did not expect to die as a result of their work as firefighters. I therefore find that because firefighting is a risky or dangerous activity does not make Ritchie’s death expected and therefore “non-accidental” according to Martin. I find that the arbitrator erred when he concluded that Ritchie’s death from an illness, caused by exposure to toxic substances at work, was not unexpected, and therefore not an “accidental death” according to Martin, supra.

The Wang Decision

[61] I also find that the arbitrator erred when he stated that the Wang decision stands for the proposition that a death from renal cancer, caused by exposure to toxic substances while working as a firefighter, is a death caused by natural causes and therefore not accidental.

[62] In Wang, the Ontario Court of Appeal elaborated on the reasoning in Martin. In Wang, the insured died from an embolism while giving birth. Her insurance policy contained an accidental death benefit rider that provided additional insurance if the insured died from an “accident”. The word “accident” was not defined in the insurance policy.

[63] In Wang, the Court of Appeal stated that the following definition of “accident” from Wilford on Accident Insurance, 2nd ed., p. 268 and approved in Smith v. British Pacific Life Insurance, [1965] S.C.R. 434 was still informative:

The word “accident” involves the idea of something fortuitous and unexpected, as opposed to something proceeding from natural causes; and injury caused by accident is to be regarded as the antithesis to bodily infirmity caused by disease in the ordinary course of events.

I find that acquiring renal cancer, as a result of being exposed to toxic substances at work, would not be considered as bodily infirmity caused by disease in the “ordinary course of events”.

[64] The Court of Appeal held that although unexpected, Ms. Wang’s death was not an “accident”. The Court clarified that death was caused by an embolism, which the majority found to be a physical illness, and was from natural causes and therefore not an accident. Charron J.A. held that “the expectation test is not appropriate when the death results solely from a natural cause” and that a person’s unexpected death in their sleep or from an aneurysm would not be described as an accident in ordinary popular language.

[65] In his dissent in Wang, Laskin J.A. summarized the general principle and theme running through the Martin decision; the predominant American case law and the Court of Appeal decision in Voison v. Royal Insurance Co. of Canada (1988), 66 O.R. (2d) 45, 53 A.L.R. (4th) 299 (C.A.) as follows:

Whether a death is accidental turns on the answer to a simple question, which may be framed in several ways: did the insured or a reasonable person in the insured’s position, expect to die?; was the death unexpected, unintended and unforeseen; was the death an unlooked for mishap or unusual result?

Laskin J.A. would have applied the expectation test in the above case and did not accept the majority’s distinction between accidental death and death from natural causes and found that it was a false dichotomy, because he held that in all cases “… the only question to be asked is whether the death was unexpected or whether the insured expected to die?”

[66] At paragraph (62) of Wang Laskin J.A. states that he assumed that Charron J.A. used the phrase “death from natural causes” in the same sense as the insurer’s expert, namely “to mean death from processes within one’s own body, not death triggered by an external event.” In Ritchie’s case his illness and death were triggered by the external event of exposure to toxic substances while fighting fires before the late 1980’s, and his death was not caused only by processes within one’s body, in any event.

[67] Applying the reasoning in Wang, supra, the question to be determined is whether Ritchie’s death resulted solely from a natural cause. In this case the uncontested evidence and the finding of the W.S.I.B. was that Ritchie’s death was causally connected to his work as a firefighter. The W.S.I.B. found that Ritchie’s career as a firefighter was a significant contributor to the development of renal cancer. This finding confirms that Ritchie did not simply develop renal cancer from natural causes, but rather that his renal cancer was caused or substantially contributed to either by a single or by multiple exposures to toxic substances during his work as a firefighter. As a result of Ritchie’s exposure to toxic substances through his work, and the fact that the protective equipment was unsafe before the late 1980’s, increased his risk of contracting renal cancer.

[68] As a result I find that the arbitrator erred when he found that Ritchie’s renal cancer – “his illness” – was caused solely by natural causes. I find that Ritchie’s death resulted from exposure to toxic substances at work and therefore was not caused solely from a natural cause and since his death from renal cancer was unexpected, then his death would have been accidental within the meaning of both the Martin and Wang decisions.

[69] Had Ritchie been exposed to toxic substances as a result of a single explosion of a container of toxic substances and as a result contracted renal cancer and died due to inhaling or having contact with the toxic substance, then this would clearly not be a death from natural causes. The same logic would apply to multiple exposures to toxic substances on several occasions over an extended period of time. In either situation Ritchie’s death would not be solely caused by natural causes, but by the exposure to toxic substances.

[70] The reasoning in the Wang decision was applied in Kolbuc v. Ace Ina Insurance, 79 O.R. (3d) 161, where Kolbuc became paralyzed after contracting West Nile Virus from a mosquito bite. He was insured under a policy against loss resulting directly and independently of all other causes from bodily injuries caused by an “accident”. The word “accident” was not defined in the policy as is the situation involving Ritchie. The trial judge found that Kolbuc’s paralysis was caused by a disease and although West Nile Virus is rare, and therefore unexpected, its contraction is not an “accident” and his death was found to be not accidental but from natural causes.

[71] Case law and common sense demonstrate that, where a physical illness that causes death is itself caused by an accident, then death from the physical illness can also be considered an accident. In Lund v. Great-West Life Assurance Co., 81 D.L.R. (3d) 487 (Sask. C.A.) the Court found that death from Hepatitis B, which Lund contracted by inhaling the virus in his work environment, was a death caused by “accidental means”.

[72] In Lund, supra, the Court relied on the words of Harvey C.J.A. in Sloboda v. Continental Casualty Co., [1938] 3 D.L.R. 166 where he stated:

the question to be determined is not whether it was an accidental death or even whether the injury was accidental but whether the means occasioning the injury was accidental.

[73] The Court concluded in Lund, supra, that the means (breathing in the virus) occasioning the injury (Hepatitis B) was an accident. The Court looked at the cause of death and held that “the weight of the evidence is such that it must be concluded that the deceased did not contract the disease from natural causes.” In our case the W.S.I.B. has held, and the City has agreed with the finding, that Ritchie’s renal cancer was causally connected to his work as a firefighter for the City.

[74] Where a person dies from a disease, which could also occur from a natural cause, it is necessary to determine whether what caused the disease to occur in the individual, arose because of an accident. In this case Ritchie’s death was caused by renal cancer, which was caused by exposure to toxic substances, which occurred during the course of his work as a firefighter. Ritchie’s renal cancer was caused by an untoward or unexpected event or events, namely his exposure to cancer-causing toxins while fighting fires. Ritchie did not expect to expose himself to toxic substances which would cause him to die of renal cancer and therefore the exposure to toxic substances was accidental.

[75] I therefore conclude that the arbitrator erred when he held that the Wang decision stood for the proposition that Ritchie’s death from an illness, however caused, was a death from natural causes and therefore not an accidental death. I find that the correct approach to follow when an illness causes a person’s death, is to determine whether what caused the illness resulted whole or in part from an accidental event, i.e. an unexpected or untoward event, or arose solely from natural causes. This approach is consistent with the reasoning in both Martin and Wang. In this case Ritchie’s exposure to toxic substances, which caused his death from renal cancer, was an unexpected event, and not caused solely by natural causes, and therefore accidental.

Other Definitions of Accidental Death

Definition in Lloyd’s Insurance Policy

[76] There is no standard definition of “accidental death” in the Insurance Act, R.S.O. 1990 c. 18. The City has urged us to adopt a definition of accidental death, similar to that contained in the policy of insurance that the City obtained from Lloyds of London, namely that the insurer agreed to pay a benefit for death caused solely by external, violent and accidental means (independent of any physical or mental illness or infirmity) during the period of insurance and where death occurs within 365 days of the accident.

[77] The definition of “accidental death” in the Lloyd’s insurance policy was not included as part of the collective agreement and is a contractual definition agreed to between the City and the insurance company. Applying the contractual definition would be contrary to the focus in Martin, namely “What did the insured in fact expect” and contrary to Martin’s insistence that the language be given a generous interpretation, and therefore I find is the definition in the Lloyds policy is not the applicable definition of accidental death to be applied to Mr. Ritchie’s situation.

Black’s Dictionary Definition

[78] The definition of accident contained in Black’s Dictionary is as follows:

1. An unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated.

2. Equity Practice. An unforeseen and injurious occurrence not attributable to mistake, negligence, neglect, or misconduct…

… Policies of liability insurance as well as property and personal injury insurance frequently limit coverage to losses that are caused by “accident”. In attempting to accommodate the layman’s understanding of the term, courts have broadly defined the word to mean an occurrence which is unforeseen, unexpected, extraordinary, either by virtue of the fact that it occurred at all, or because of the extent of the damage. An accident can be either a sudden happening or a slowly evolving process like the percolation of harmful substances through the ground…

[79] The first part of the definition in Black’s Dictionary is consistent with the test adopted by the Supreme Court in Martin. The second part of the definition in Black’s Dictionary refers to policies of liability insurance as well as property and personal injury insurance and includes a definition of accident as “An accident can be either a sudden happening or a slowly evolving process like the percolation of harmful substances through the ground.”

[80] In this case Ritchie’s exposure to toxic substances probably occurred over an extended period of time, and was a slowly evolving process, which unexpectedly caused Ritchie’s renal cancer, and as a result his death. This situation would fit within the second definition of “accident” as set out in Black’s Dictionary. As the Supreme Court stated in Martin, the definition of “accidental”, in the absence of restrictive language to the contrary in the insurance policy, should be given a generous interpretation. The interpretation must also be consistent with Martin, Wang and also Lund, supra.

[81] As a result I conclude that Ritchie’s death from renal cancer, which was causally connected and substantially contributed to by his exposure to toxic substances, while working for the City as a firefighter before the late 1980’s, was an accidental death and the arbitrator erred when he found that Ritchie’s death was not accidental.

Definition of Workers’ Compensation Act

[82] The arbitrator did not give any weight to the definition of “accident” adopted by the Ontario Workers’ Compensation Act R.S.O. 1990, c.w. 11, s. 134(1), which applied to injuries before 1998. Occupational diseases are to be deemed to be an accident. The same definition was adopted in the W.S.I.A., which replaced the W.C.A. in 1998. Section 131(1) states as follows:

Where a worker suffers from an occupational disease and is thereby impaired or his or her death is caused by an occupational disease and the disease is due to the nature of employment in which the worker was engaged, whether under one or more employments, the worker is or his or her dependants are entitled to compensation as if the disease was a personal injury by accident…

[83] While this definition may not be relied on to determine the common law definition, it is consistent with the common law definition arrived at through the above analysis, and consistent with the idea that occupationally-caused illnesses, which are unexpected and which do not arise solely from natural causes, should be treated differently from illnesses caused solely from natural causes, and are deemed to be accidental under the Worker Compensation legislation.

Issue #4 – Was Ritchie “killed in the line of duty”?

[84] I would apply the same analysis to this issue as in the case of accidental death. Given the uncontested evidence that Ritchie’s renal cancer was causally connected to his work as a firefighter for the City, which was a significant contributor to his renal cancer, given the absence of a limiting definition in the collective agreement, and given my finding that Ritchie suffered an “accidental death”, one that was unexpected, and not caused solely by natural causes, I find that Ritchie was also “killed in the line of duty”.

[85] Ritchie’s death was caused by exposure to toxic substances contacted by him during his employment or while “in the line of duty” and as a result I find that he was “killed in the line of duty”. I therefore find that the arbitrator erred when he found that Ritchie was not “killed in the line of duty”. The cause of Ritchie’s death is directly related to his work (performing his duty) and occurred as a result of exposure to toxic substances while he was on duty.

[86] If a firefighter was injured while fighting a fire, and then died several months later as a result of the injuries suffered, then it would be reasonable to conclude that he or she was killed in the line of duty, even though death did not occur while the person was working. Where there is no restrictive definition limiting the period of time which could pass between the event which causes the person’s death, then as long as the death is caused or substantially contributed to by an event or events which occurred while working (while on duty), and death results, I find that the person would be “killed in the line of duty” and that this was the case for Mr. Ritchie.

Issue #5 – Does the arbitrator’s error in applying the common law definition of “accidental death” result in the decision as a whole being patently unreasonable?

[87] The final part of the analysis is to determine whether of the arbitrator’s error in applying the common law insurance principles renders his decision, taken as a whole, patently unreasonable. The arbitrator’s error is on the central question of whether or not Ritchie’s death was accidental. This error is fundamental and directly affects the result of the arbitrator’s decision. As a result I find that the arbitrator’s error in interpreting the common law insurance principles with regards to accidental death benefits, renders the decision patently unreasonable in the circumstances of this case.

Disposition

[88] The award of the arbitrator Dane Randall, dated November 24, 2005, is hereby quashed and set aside and the City is ordered to pay the “accidental death benefit” and the “killed in the line of duty benefits” to Ritchie’s estate.

[89] If the parties are unable to agree on costs, the Applicant shall have 15 days to make submissions and the Respondent shall have 15 days to respond.

R. Smith J.

Cunningham A.C.J.S.C.

Lane J.

Released: 20070329

COURT FILE NO.: 138/06

DATE: 20070329

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C., LANE AND R. SMITH JJ.

B E T W E E N:

TORONTO PROFESSIONAL FIREFIGHTERS’ ASSOCIATION

Applicant

• • and -

CITY OF TORONTO

Respondent

REASONS FOR DECISION

R. Smith J.

Released: