Substance addiction is considered a disability under Canadian human rights law and is a protected ground of discrimination.[1] Cannabis usage qualifying as a prima facie substance addiction and disability is fact dependent. Practitioners in this area of law must remain aware that proving prima facie discrimination on this ground has been a difficult standard to meet under Canadian law. In the recent decision of one Ontario labour arbitration board, this was made clear.
Canadian Pacific Railway v United Steelworker dealt with the validity of employment termination with cause for cannabis usage at work. The employee was found with a significant amount of marijuana in her system after committing a safety violation. She was terminated thereafter for violating the company’s alcohol and drug policies and procedures. The Union argued that her position as a long service employee, and history taking an active role to seek assistance with her addiction, provided a valid defense against termination. The Canadian Railway Office of Arbitration & Dispute Resolution upheld the employer’s decision and the employee’s termination remained unchanged.
While this is an Ontario decision, it follows the legal principles outlined in the foundational Stewart v Elk Valley Coal Corp. Supreme Court decision. The judgment held that disclosure was key in cases involving employee substance abuse and addiction. In this, employees must disclose to employers any dependence or addiction issues that they suffer from. Retroactive disclosure after a safety infraction has been committed did not satisfy prima facie discrimination on the grounds of substance abuse. The decision further held that even with this disclosure, employers only had a duty to accommodate to the point of undue hardship. Under this test, safety infractions and violations that put employees and others at risk, qualify as undue hardship. [2]
On December 2, 2022, the Cannabis Act was amended to expand the public possession limit for cannabis beverages to 17.1 litres, bringing them in line with other cannabis products. While this amendment may impact cannabis usage in the workplace, the law has made clear that there is no absolute right to medical cannabis in the workplace.[3] An employee has no right to ingest cannabis in the workplace, regardless of medical concerns and conditions. [4]
For more information on the nuances within cannabis and employment law, visit the Government of Canada’s official directive here.
[1] Stewart v. Elk Valley Coal Corporation, 2017 SCC 30.
[2] supra note 1 at para 32.
[3] Aitchison v. L & L Painting and Decorating Ltd., 2018 HRTO 238 at para 165.
[4] ibid at para 166.
