HRTO Denies Discrimination Claim in Medical Marijuana Case

May 30, 2018 | Elliot P. Saccucci

In Aitchison v. L & L Painting and Decorating Ltd., the Human Rights Tribunal of Ontario (“HRTO”) recently had the opportunity to consider the intersection of the issues of drug use in the workplace, accommodation of a disability and termination for cause. The Applicant, who was seasonally employed as a high-rise painter between 2011 and 2015, was terminated on July 6, 2015 after being found smoking cannabis at work, which he alleged was for medicinal purposes. While the Applicant had smoked marijuana for years, he had a prescription for medical use cannabis, which he began receiving in March 2015. The employer had a zero tolerance policy for drug use in the workplace, including for health and safety reasons. The Applicant alleged that the employer had terminated his employment instead of accommodating the disability by allowing him to use medical cannabis.

In rendering its decision, the HRTO first considered whether the Applicant had a disability under the Ontario Human Rights Code. On the evidence, the Tribunal was satisfied that the Applicant had a back injury that constituted a disability. Next, the Tribunal considered whether the employer had condoned the cannabis use, finding that there was no evidence to corroborate the Applicant’s allegation that it had and rejecting the argument. The Tribunal also went on to find that there was no evidence to find that the Applicant had requested an accommodation with respect to medicinal marijuana use. More importantly, however, the Tribunal also stated that the employer:

…is not obliged to accommodate preferences if those would amount to an undue hardship, or, for that matter if those fall short of a reasonable alternative accommodation proposed by the respondent: see Central Okanagan School District No. 23 v. Renaud1992 CanLII 81 (SCC), [1992] 2 SCR 970.  I would have no difficulty in concluding that the applicant’s preferred accommodation presented an undue hardship in light of the health and safety concerns particular to this workplace.

The Tribunal rejected the Applicant’s arguments that: the employer failed in its procedural obligation to investigate whether the Applicant suffered from an addiction before it took steps to terminate him; the employer required evidence of impairment before terminating his employment; and the zero tolerance policy was discriminatory.

In dismissing the Applicant’s arguments and the Application in its entirety, the Tribunal noted on multiple occasions the risk to health and safety of cannabis impairment, reiterating that such a risk constitutes undue hardship on the employer. As this decision was rendered in the instance of medicinal cannabis use, logically, the principles should be even more applicable to recreational.

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