Finally! We are finally starting to see some case law on the issue of accommodation of medical marijuana in the workplace. We have always said that accommodation is only required to the point of undue hardship, and that safety is the primary form of hardship in this context (as opposed to most other forms of accommodation, where cost is the biggest issue). And personally, I have always said that “the duty to accommodate will never mean that you have to allow an impaired employee to drive your company truck”. But how far do you have to go as an employer?
In Aitchison v L & L Painting and Decorating Ltd., the Complainant was a painter working for the Respondent, a contractor involved in the restoration of high-rise buildings. Specifically, part of his duties involved painting the outside of buildings, at various heights.
The Complainant suffered from degenerative disc disease, which caused chronic neck and back pain. His doctor was aware of this and had prescribed the use of medical marijuana, and apparently, the Complainant smoked marijuana during breaks at work to ease the pain.
All was good until June 2015, when the Complainant was seen smoking marijuana while on a “swing stage” outside the 37th floor of a building he was painting. He was immediately sent home by his site supervisor, and was subsequently dismissed due to a breach of the Respondent’s zero tolerance policy with respect to, among other things, the use of prescription drugs that could result in impairment while working. This policy was justified by the Respondent on the basis of the safety-sensitive nature of the work.
The evidence was that the Complainant had never indicated any need for accommodation. However, the Respondent asserted that his use of medical marijuana while at work had been condoned by his supervisor, which his supervisor denied.
Credibility is key
The matter went before the Human Rights Tribunal of Ontario, which had issues with the credibility of both sides:
 Overall, I found the applicant’s evidence to be difficult to follow and at times contradictory. He had a difficult time recalling the sequence of events and key dates. There were instances where his testimony contradicted the facts plead in the Application, his witness statement and other documentary evidence.
 In contrast, the testimony of the respondent’s witnesses was much more consistent. The narrative offered by the respondent’s key witnesses was more fluid and internally consistent. The applicant suggested that this was evidence of collusion among the respondent’s witnesses. I disagree. The evidence of Messrs. Ujka, Gerzon and Raskin was not replicate, it too was inconsistent at times and contradicted the facts plead in the Response and the witness statements submitted on their behalf. Most notable, was the fact that the timeline of the respondent’s narrative contradicted the text messages that were put into evidence.
 In that sense, the reliability of the evidence provided by all of the key witnesses on both sides have been called into question. In the end, however, the onus rests with the applicant to establish the factual basis to prove discrimination.
The Tribunal noted that the issue of whether the Respondent had condoned the Applicant’s use of medical marijuana was vital to the case. As such, credibility was crucial. The manner in which the parties’ credibility was assessed on this issue is insightful:
 As there are no corroborating witnesses or evidence to support either side’s claim, the dispute in this case comes down to a determination of credibility. In determining credibility, I follow the Tribunal’s usual practice of relying on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CanLII 252 (BCCA),  2 DLR 354 (BCCA):
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions…
 If I were to adopt the applicant’s version of events then I am accepting that his supervisor was okay with the applicant smoking cannabis on a swing stage by himself on the outside of a high rise building, some 37 floors above the ground. Does this seem reasonable in the context of this workplace? The evidence that this is a safety sensitive work site is overwhelming. The applicant’s job was to perform work on the outside of a high-rise building with pedestrian traffic passing below the work site. Any accident involving equipment dropping from the swing stage could result in catastrophic consequences.
 It is difficult for me to believe that in these circumstances, Mr. Ujka would have condoned drug use on site. It seems inconceivable that a supervisor would flaunt health and safety rules for the sake of the applicant. Moreover, the applicant asserts that Mr. Ujka condoned this behaviour as early as 2014, before the applicant had a legal right to use medical marijuana.
 If the owner learned that Mr. Ujka condoned this behaviour it is reasonable to assume that he too could risk losing his job. Again, it seems incredible to me that Mr. Ujka would put his own job in jeopardy for the sake of the applicant.
 I heard undisputed evidence that in addition to the respondent’s employees there were other trades on the work site. It makes little sense that the applicant would be permitted to smoke at work, at risk that anyone could have reported him to the General Contractor.
 The applicant’s account that he and Mr. Ujka had an arrangement whereby he would go out onto the swing stage alone to smoke also flies in the face of the health and safety protocols that were in place. I heard evidence from the respondent’s witnesses, including Mr. Bolduc that employees were not permitted onto the swing stage alone due to safety concerns. If the stage were to malfunction and drop it would require two persons to move the stage back in place. I accept that evidence. It seems unlikely that Mr. Ujka would flaunt this protocol for the benefit of the applicant.
 In the absence of any corroborating evidence, the applicant’s claim that his supervisor was aware and condoned his marijuana use is simply unreasonable given these circumstances.
 I do not accept the applicant’s evidence on this point. As the owner of the respondent business, Mr. Raskin would have been responsible for implementing the company’s zero tolerance policy. I accept his evidence that it was an expectation of the General Contractor that its subcontractors comply with the zero tolerance policy. It is difficult to accept that Mr. Raskin would risk his own business by permitting employees to come to work intoxicated, so long as their drug or alcohol use was done off property.
We are often asked by clients how courts or tribunals will determine “he said/she said” cases. As we explain, that happens every day; it is part of the role of the decision-maker to make such credibility assessments, which often involves consideration not only of the parties, but of the way in which their evidence is either consistent or inconsistent with the external context.
No failure to accommodate
With respect to the failure to accommodate, the Tribunal found that there was no proper request for accommodation made:
 There is no evidence that the applicant requested an accommodation with respect to his marijuana use. As stated previously, I do not accept the applicant’s claim that his supervisor was aware of his marijuana use and condoned it. Instead, the applicant took it upon himself to unilaterally use marijuana at work without authorization from either his employer or his treating physician. It is difficult to conclude that the respondent failed to accommodate a request that was never made.
Even if such a request had been made, the Tribunal was clearly not prepared to accept that allowing an external painter to smoke marijuana on a swing stage at great heights would be an appropriate form of accommodation. Notably, even the Complainant’s own doctor acknowledged that he was not aware of the nature of the Complainant’s job and in that context, his position on accommodation was untenable:
 Dr. Price testified that had he known the applicant’s job involved working on the outside of a high rise building, he would have discussed refraining from medicating at work. It was the applicant’s preference to self-accommodate by medicating on his breaks. The applicant simply chose to do it in breach of a policy that he was aware of and without seeking prior approval. Even if the respondent had been made aware of the applicant’s chronic pain disability and been approached by the applicant seeking accommodation with respect to the zero tolerance policy, I would not have found that the applicant’s preference for medicating at work was part of any reasonable accommodation.
 Moreover, the respondent 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. Renaud, 1992 CanLII 81 (SCC),  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.
 I find that the applicant has failed to make out a breach of the duty to accommodate with respect to his marijuana use.
 The applicant submitted that the respondent breached its procedural duty to investigate the possibility of accommodating his marijuana use before it terminated his employment. I respectfully disagree. The applicant had already committed a serious health and safety breach that was in violation of the zero tolerance policy before the respondent was ever made aware of any accommodation needs. The respondent was under no obligation to consider whether it could reasonably accommodate the applicant after the fact, that is after he provided the grounds for his own termination.
Zero tolerance policy Ok in this context
We often advise clients not to adopt zero tolerance policies. It is critical to remember that courts and tribunals will not blindly enforce such policies; they will assess any dismissal, including dismissal for breach of a zero tolerance policy, in order to assess whether just cause for dismissal truly existed. However, in this case, the Tribunal found as follows;
 The fact that the respondent relied on a zero tolerance policy to support its termination does not equate to discrimination under the Code in the circumstances of this case. There must be some evidence that the applicant’s disability was a factor in his termination: see Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII). The applicant’s decision to use marijuana at work was his own. It was not an act of compulsion and the employer had no opportunity to consider whether it might have been part of some reasonable accommodation plan. Given the health and safety risks inherent to this worksite, I accept that the applicant was dismissed for a serious health and safety violation. For these reasons, I conclude that there is simply no evidence to support the claim that the applicant’s disability was a factor in his termination.
Ultimately, the Tribunal ruled in favour of the Respondent, holding that although the Complainant had demonstrated that he suffered from a disability, there was no discrimination or failure to accommodate.
We will see an increasing number of “marijuana at work” cases in the next few years, with some involving allegations of a duty to accommodate. Those will help to delineate the scope of the duty to accommodate, bearing in mind that every case must be assessed based on its own particular factors. In Aitchison, the fact that the employee worked at great heights was a critical factor.
The right to accommodation, and the widespread acceptance of medical marijuana, does not mean that employees have a right to use marijuana at work. Safety considerations will be taken into account and although zero tolerance policies will not be automatically enforced, they will be enforced when appropriate.
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