Although it was clearly discriminatory on the prohibited ground of disability, the Ontario Human Rights Tribunal recently found it could not allow the applicant to smoke his medical marijuana in liquor-licensed establishments. This discrimination could be justified because the respondents were able to show that allowing customers to smoke marijuana on their premises, even to accommodate individuals with Authorizations to Possess Marijuana (ATPs), would result in undue hardship. On the other hand, this was not the case for simply possessing the medical marijuana, so an order was made that this part of the provision should not be enforced.
The case involved an individual living in Toronto, who suffered from some congenital conditions that caused him to live with a great deal of pain. Though he tried several strong prescription painkillers, he experienced serious side effects, developed tolerance, or was unable to function at all. Eventually, he discovered that marijuana helped with his pain. This led to him obtaining an ATP. He smoked about 14 grams of marijuana per day.
The problem came when the applicant tried to smoke his medical marijuana in public places such as restaurant patios with the cigarette smokers. He was expressly refused the right to consume his medicine in about 16 establishments. The owners understood that he had the ATP, but stated that though they wanted to accommodate him, they had a liquor licence they had to abide by. Section 45(2) of Regulation 719 under the Liquor Licence Act says the proprietors of licensed establishments can be fined or lose their licence if they let customers smoke marijuana. The managers would say things like, “Just smoke outside the door and I’ll advise the staff you have an exemption and to leave you alone.”
The tribunal agreed that there was a prima facie case of discrimination based on disability, but this discrimination could be justified. That is, the provision under Regulation 719 was reasonably necessary, and accommodation of individuals with ATPs would result in undue hardship. On the other hand, this was not the case for simply possessing medical marijuana, so an order was made that this part of the provision should not be enforced.
What did it come down to? The respondents pointed to the evidence about harm of “sidestream” smoke that left levels of THC (tetrahydrocannabinol, the effective medicinal ingredient in marijuana) in the bodies of people nearby the smoker who passively inhaled the smoke. How much THC left in the body is in dispute among the medical experts, however.
The tribunal stated, “I find, based on the expert evidence, that sidestream marijuana smoke poses a risk to passive inhalers in open-air environments such as uncovered patios of restaurants and bars. There is a risk of a pharmacological and/or toxicological effect. Some level of ‘impairment’ is also possible.” In other words, persons who inhale the sidestream smoke might experience some degree of marijuana “high”.
Consequently, the respondents were able to establish that there was a serious risk to passive inhalers from sidestream marijuana smoke, giving rise to undue hardship. Thus, the measure, while discriminatory, was reasonably necessary to accomplish a legitimate legislative purpose. The challenged provision was justified as it pertained to smoking the medical marijuana.
However, the court ordered that ATP holders are allowed to possess medical marijuana while attending the establishments in question. Also, the decision applies only to smoking marijuana, and leaves open the possibility of orally ingesting the drug while in these establishments.
What does this mean for employers? Employers must be aware of this rule if they are owners of liquor-licensed establishments, and they must train their staff to act in accordance with the law.
First Reference Human Resources and Compliance Editor
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