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No Presumption Without Exposure: WSIAT Reverses WSIB Entitlement for Mesothelioma, Finding No Evidence of Asbestos Exposure in Caretaker Role
Date: May 15, 2025
In a recent decision, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) found that a caretaker’s duties at a large public sector employer did not involve asbestos exposure.
In setting a critical precedent for employers, the WSIAT confirmed that a caretaker’s routine work does not trigger the irrebuttable presumption of work-relatedness under Policy 16-02-12.
Background
The worker had been employed as a caretaker by a large public sector employer since 2005. They performed various housekeeping duties at buildings associated with the employer. In December of 2017, the worker was diagnosed with malignant peritoneal mesothelioma, epithelioid type, and passed away in January 2021.
In April 2018, the Workplace Safety and Insurance Board (WSIB) granted initial entitlement for the worker’s malignant mesothelioma, attributing it to workplace asbestos exposure. This was later upheld in the WSIB’s reconsideration decision in August 2021.
The employer objected, and the matter was referred to the WSIB’s Appeals Branch for further consideration. The Appeal Resolution Officer (ARO) denied the employer’s objection in February 2022.
The employer appealed the ARO decision to the WSIAT. The central issue was whether, on a balance of probabilities, the worker’s employment history with the employer as a caretaker from 2005 to 2018 made a significant contribution to the development of their mesothelioma in 2017.
The Panel’s Decision
The Panel rejected the WSIB’s finding that, as a caretaker, the worker was involved in a maintenance process involving the generation of airborne asbestos fibres. Operational Policy Manual 16-02-12, “Mesothelioma of the Pleura and Peritoneum” and Schedule 4 to the Workplace Safety and Insurance Act provides for an irrebuttable presumption that mesothelioma occurred due to the nature of the employment if the worker was “employed in a mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos.”
The Panel concluded that the worker’s caretaker duties – sweeping floors, cleaning washrooms, dusting – did not qualify as work involving the generation of airborne asbestos. The Panel held that this was an “inescapable conclusion” based on the evidence.
Additionally, the Panel reviewed the extensive evidence, including voluminous records regarding the employer’s asbestos management policy, incident reports, asbestos inventories, and air sampling data. The Panel held that there was a “complete absence of evidence” that the worker’s caretaker duties gave rise to any routine asbestos exposure.
The worker undertook basic caretaker and housekeeping activities but was never tasked with cleaning asbestos or involved in asbestos-related projects such as demolition, construction, or renovation. They did not perform any work that would disturb the asbestos.
The Panel also found that the development of the worker’s mesothelioma within 12 years of the commencement of their caretaking duties with the employer, was inconsistent with the minimum 20-year latency period established in Tribunal case law dealing with mesothelioma.
Furthermore, the Panel noted that the employer had a rigorous and sophisticated policy which emphasized control of any asbestos risk and identified special protocols for work that could involve asbestos-containing materials.
The Panel found no reliable medical evidence linking the worker’s mesothelioma to their employment, particularly given the long latency of this type of cancer, that many cases are of an unknown cause and the fact that the length of their employment did not align with a work-related cause. The Panel ultimately concluded that there was insufficient evidence and no reliable medical information to support the conclusion that work-related factors made a significant contribution to the development of the worker’s mesothelioma.
Key Takeaways
The Panel’s decision highlights that caretakers performing basic caretaker tasks do not fall under the WSIB’s irrebuttable presumption of work-related mesothelioma exposure.
It also highlights the importance of medical evidence correlating the worker’s conditions to their work activities. Conducting work duties in a building with asbestos-containing materials is insufficient to establish that a worker was exposed to the asbestos.
This decision also highlights the importance of consistency of exposure with known latency periods when determining entitlement to workplace injury claims.
Finally, this decision serves as an important reminder for employers to ensure a stringent asbestos management policy is in place, addressing protocols for work that could involve asbestos-containing materials.
If you have any questions regarding this topic, please do not hesitate to contact Jodi Gallagher Healy, Amanda E. Lawrence-Patel or your regular Hicks Morley lawyer.
The authors thank Nassima Kaddoura, a 2024/2025 articling student, for her assistance with this article.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©