AJEFO Conference 2019 Panel 2: The legalization of cannabis and its consequences
A bit of background
The second panel of the AJEFO 2019 conference discussed the consequences of the legalization of cannabis, a topic which would have been unthinkable in this setting not so long ago. For the record, science is divided on the effects of cannabis, which is composed of tetrahydrocannabinol (THC), a substance that impairs faculties, and cannabidiol (CBD), known for its medicinal properties. The law specifically regulates THC. It is interesting to know that cannabis today is different from that of the past. The THC concentration has increased from 3% (in 1983) to 30% today. Some 4.9 million Canadians used cannabis in 2017.
One of the major issues with cannabis consumption is the difficulty of measuring impairment. THC can be detected in blood one week after consumption, without impairment. Consequently, standard tests give many false positive results. Cannabis is different from alcohol in that its effects are more subtle and longer lasting. THC is stored in the brain and fat cells, and is released over a long period of time. Science is more advanced with regard to the effects and measurement of alcohol consumption.
In the area of labour, there is a wide variation in consumer regulations. Some employers allow returning to work only after 28 days have passed after cannabis consumption. Others treat cannabis like alcohol. The legal profession will have to assimilate many new criminal provisions. The federal legislation therefore creates standards and restrictions from which provinces can deviate and adjust to. Municipalities now also have to manage issues such as zoning, retailer locations, and rules for consumption in public places.
In New Brunswick, you must be 19 years old to use cannabis, and only in private dwellings and adjacent land. Cannabis must be stored in a container or locked room. In Quebec, the age is 18, but could be adjusted to 21. Cannabis can be consumed like tobacco, but cultivation is prohibited. In Ontario, the age requirement is 19 years, and up to four plants can be grown per household.
In the workplace, employers used to treat cannabis as an illicit substance. Since legalization, this has changed. Employers will no longer be able to dismiss an employee for possession, but will still be able to impose disciplinary measures. They will be able to test for drugs in certain circumstances, although case law illustrates that testing can be discriminatory. For example, in the Ontario Court of Appeal decision Entrop v. Imperial Oil, the respondent was reassigned to a non-safety-sensitive position, which was less desirable to him. Imperial had instituted a policy requiring employees in safety-sensitive positions to report to management current or past substance abuse problems, a policy to which the respondent had complied. The policy also provided for pre-employment drug testing and random drug testing for employees in safety-sensitive positions. The Court of Appeal ruled that this was not a reliable indicator and that this provision was discriminatory. A bona fide occupational requirement is required to test prospective employees. However, the courts do accept tests to assess risk in security posts (e. g. bus driver). It should be noted that consuming at work, even therapeutic cannabis, is not an absolute right.
In the Supreme Court decision Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., the Union had filed a grievance challenging the mandatory random alcohol testing component of an alcohol and drug use policy that the employer, Irving, had unilaterally implemented in its paper mill. Under this policy, over the course of a year, 10% of employees in at-risk positions would be randomly selected for the breathalyzer test without notice. A positive result resulted in serious disciplinary action, including potential dismissal. In this case, the Arbitration Board concluded that the expected safety benefits to the employer were in the range of uncertain to minimal, while the invasion of employee privacy was serious. The Supreme Court agreed with the arbitration board.
In the Supreme Court of Newfoundland and Labrador International Brotherhood of Electrical Workers, Local 1620 c. Lower Churchill Transmission Construction Employers’ Association, in which the Grievor had disclosed that he needed cannabis for chronic pain, the Court found that the risks associated with cannabis and the lack of testing measures could impose undue hardship on the employer. The employee’s return to work was an unacceptable risk to the employer.
Finally, insurance law must take into account personal injury and future care costs. In Chiasson v. Thériault, 2018 NBQB 177, following a car accident, Ms. Chiasson filed a claim for $140,000 for medical marijuana. The court determined that the medical use of cannabis was justified to help Ms. Chiasson relieve her chronic pain, but it was also convinced that even if she had not had an accident, Ms. Chiasson would have used cannabis anyway. Instead of claiming $140,000 for two grams of marijuana per day, the court awarded her $35,000.
In Carrillo v. Deschutter, 2018 BCSC 2134, Mr. Carrillo, recovering from a motor vehicle accident, self-medicated with cocaine for about six months and then pleaded guilty to possession of cocaine for the purpose of trafficking. A psychiatrist retained by the Court recommended a medical cannabis program for him. This program was “medically justified,” but there was no evidence on the costs and recommended duration of the program. While Mr. Carrillo was seeking $91,032 for the future costs of medical cannabis, the court awarded him $12,000.
Lastly, in Stewart v. TD General Insurance Company, the plaintiffs insured the contents of their residence under a policy with the defendant insurer. Mr. Stewart was authorized to possess and grow marijuana for medical purposes. Eleven marijuana plants grown in the complainant’s backyard were stolen. The plaintiff claimed reimbursement for the cost of the stolen plants, under his home insurance policy. The insurer paid the claim up to $1,000 per plant, based on the exclusion for trees, shrubs and plants. The plaintiff sued the insurer, claiming that the stolen cannabis plants were in fact personal property covered by the insurance policy. The judge agreed with the insurer.
The question going forward will be whether, with legalization, cannabis will be considered as common property for insurance purposes.
Geneviève Proulx is the French Language Service Advisor at the Law Society of Ontario. Geneviève is responsible for the provision of French translation and communications within the External Relations and Communication Department.