Darin Burton alleged that his employer, Tugboat Annie's Pub
(the "Employer"), discriminated against him on the ground
of physical disability when he was discharged for smoking marijuana
at the workplace. Burton claimed that the Employer had been aware
since the outset of his employment that he used medical marijuana
to deal with chronic pain from degenerative disk disease. The
Employer denied that it had any knowledge of either his disability
or that his marijuana use was related to any medical condition.
Burton was employed by the Employer as an assistant manager and
bartender from April of 2012 until his termination on January 9,
2015. His job duties included serving alcohol to customers and
monitoring customer alcohol consumption and conduct to ensure the
Employer abided by its common law and statutory obligations under
the Liquor Control and Distribution Act, the
Occupational Health and Safety Regulations, and the
Occupier's Liability Act.
The Employer had a written workplace policy that clearly stated
employees must not consume, or be under the influence of, drugs or
alcohol while working. The policy stated that a failure to comply
would result in immediate dismissal. Burton acknowledged he was
familiar with the policy.
Burton was caught smoking marijuana on shift on January 8, 2015
and was terminated the next day.
Following his dismissal, Burton filed a human rights complaint
alleging that his termination was discriminatory, as he uses
medical marijuana to deal with chronic pain from degenerative disc
disease. Burton submitted that the Employer was aware of both his
use of marijuana and of his diagnosis of degenerative disc disease
from the beginning of his employment in April 2012.
The Employer stated its reasons for termination included his
smoking marijuana on shift, as well as other culminating workplace
issues including Burton's poor work performance and attitude.
The Employer said that Burton had never advised that his marijuana
use was related to degenerative disc disease or other physical
disability, and the Employer was not aware of Burton's physical
disability until after his termination.
The Employer applied to dismiss the complaint under s. 27(1)(c)
of the BC Human Rights Code on the basis that it had no
reasonable prospect of success.
On the evidence submitted, the Tribunal concluded that Burton
had failed to make any link between his physical disability and his
termination, and dismissed his complaint.
The Tribunal accepted that while the Employer was aware Burton
smoked marijuana outside of work for recreational purposes, it was
not aware of Burton's physical disability during his
The Tribunal stated that an employer must be aware of an
employee's disability, or ought reasonably to be aware, before
the duty to accommodate will be triggered.
In this case, the Tribunal noted there was no evidence that the
Employer was aware that Burton's marijuana consumption was
related to his physical disability. The only documentary
evidence Burton provided the Tribunal was a diagnosis for
degenerative disc disease, which was made following his
Hence, Burton was unable to establish the required nexus between
his disability and his termination, and his complaint was
Advice for Employers
This case reiterates the obligations that employees have in the
accommodation process. As the Supreme Court of Canada has
recognized, accommodation is a multi-party process and employees
have an obligation to co-operate in the accommodation process. This
includes being forthcoming with medical information when seeking
accommodation in the workplace. There is no duty to accommodate a
disability that the employer did not know about – and could
not have reasonably known about – until after an employee is
Moreover, this case serves as a reminder that as the use of
medical marijuana continues to increase across Canada, employers
must be aware of the duty to accommodate disabled employees who
have been prescribed medical marijuana. Accommodations will involve
navigating the challenges of fulfilling human rights obligations,
while also ensuring a safe workplace. Employers may also need to
revisit their workplace drug and alcohol policies to ensure they
are broad enough to encompass marijuana use and possible impairment
at the workplace.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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