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March 8, 2018

Last updated June 30, 2022

This report is inspired by an article written by Adrian Miedema, of Dentons Canada LLP. Possession Of “Small Amount” Of Marijuana Was Just Cause To Fire Employee Who Had “Not Carefully Checked His Pockets” Before Screening To Board Flight For Offshore Platform. It is also based on a recent appeal decision Terra Nova Employers’ Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7 (CanLII).

In 2018, the Canadian Federal government legalized, legislated and restricted the possession and consumption of cannabis in Canada. Despite legalization, possessing controlled substances is not permitted in workplace settings. This holds particularly true when it comes to matters of public and employee safety.

In Newfoundland, an on-call unionized millwright was called into work, and was later dismissed on the onshore platform because of drug possessionーhe had marijuana in his pocket that he “didn’t know was there.”

However, during the appeal process, the lower court judge initially overturned the arbitrator’s decision. Since the millwright insisted that he “did not know the marijuana was there,” the lower court judge insisted the employee did not have the requisite mens rea (intention) for possession that would be required to violate the policy.

This ruling is in contrast to the arbitrator’s initial strict liability approach. The strict liability approach means that doing the prohibited act is sufficient to establish noncompliance with the policy, regardless of whether there was intent to violate the policy.

The appellate court noted that strict liability applies whenever the objective is to safeguard society’s welfare or protect the public.

In this case, the work for which the individual was engaged was indeed safety-sensitive. The presence of the controlled substance meant that if the employee in question had used marijuana before or during his shift, the environmental or public impact could have been catastrophic.

Had the lower court upheld the original decision, it would have raised significant concerns for employers and rendered alcohol and drug policy safety protections largely unworkable. Fortunately, the Newfoundland and Labrador Court of Appeal restored the original arbitrator’s decision and upheld the termination.

Employees have an obligation to take all reasonable action to ensure that they do not breach company policy.

In this circumstance, the individual’s failure to check his pockets before reporting for shift meant he had not taken the necessary steps to comply with the drug possession portion of the applicable alcohol and drug policy.

Workforce Delivery Inc. provides frontline supervision and upper management alcohol and drug work policy training. We also provide on-the-fly administrative support for live issues that you or your organization may be encountering. For more information, please contact us or visit our homepage.

Samuel Kemble

Executive Operations Officer

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