The legalization of marijuana made news again recently when Ontario
announced its plans with respect to how the legal sale of marijuana will
be practically rolled out.
Basically, the Liquor Control Board
of Ontario (LCBO) will run 150 retail outlets selling marijuana, and the
drug will also be available to purchase online. Mom and pop marijuana
dispensaries, which have always been illegal, will continue to be
But it seems like
there are a lot more than 150 of these illegal dispensaries, and it is
hard to imagine 150 government-run stores will be able to meet the clear
market demand. Concerns have been raised that the black market will
continue to flourish, even once these new legal stores open.
also announced that, for now, the legal use of recreational cannabis
will be confined to private residences. Similar to alcohol, it will not
be allowed in public places or workplaces.
As a result, workplace policies may need to be updated based on the changes to the law.
drug laws in this country seem to be softening, a decision from the
Supreme Court of Canada this June seems to have given drug policies more
In Stewart v. Elk Valley Coal Corp.,
the Alberta court upheld the termination of an employee for a one-time
breach of the employer drug and alcohol policy. In the past, a one-time
breach rarely justified with-cause termination.
The policy in
question required employees to disclose any addictions prior to the
occurrence of a drug- or alcohol-related incident. The policy specified
that those who did disclose would be supported with treatment, and those
who did not disclose, but subsequently tested positive for drugs or
alcohol, could be terminated.
In this case, the employee,
Ian Stewart, held a safety-sensitive coal mining position, did not
disclose his addiction, was involved in a workplace accident and
subsequently tested positive for cocaine.
investigation following the accident, Stewart disclosed that he thought
he was addicted to cocaine. Elk Valley terminated Stewart’s employment,
in accordance with the terms of its policy.
Stewart brought a human rights complaint on the grounds he was
terminated for his addiction, constituting discrimination on the basis
of disability under the Alberta Human Rights Act.
Human Rights Tribunal held that Stewart was terminated for breaching the
company policy, and not because of his addiction, and in the
alternative, that discrimination was permissible where there was a bona
fide occupational requirement.
Stewart argued that part of
his addiction was a denial of his addiction, and therefore it was his
addiction that prevented him from complying with the policy with respect
to disclosing his addiction.
On this point, the tribunal
stated, and the Supreme Court agreed, that while he may have been in
denial about his addiction, Stewart knew he should not take drugs before
working and had the ability to decide whether or not to do so, as well
as the ability to disclose his drug use to his employer (and comply with
the policy). Denial about his addiction was thus deemed irrelevant.
tribunal reached the decision there was no prima facie discrimination
and the mere presence of an addiction does not establish prima facie
Stewart appealed to the Court of Queen’s Bench and to the Alberta Court of Appeal, and both courts dismissed the appeal.
The Supreme Court also upheld the tribunal’s decision in an eight-to-one split.
many cases, where there is an addiction-related issue in the facts with
respect to a termination, employers may have felt hamstrung.
case indicates that where the policy is clear, and where the employee
has the capacity to comply with the terms of the policy (addicted or
not), a termination can be justified.
Lisa Stam is
founder of Spring Law in Toronto and practises all aspects of
employment, labour and human rights law. For more information, visit