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French v. Selkin Logging, 2015 BCHRT 101 (CanLII)

Summary:

Mr. French has worked in the logging industry since 1990, for a variety of employers. In 2009, Mr. French was diagnosed with cancer. Mr. French underwent surgery, chemotherapy and radiation as part of his cancer treatment. In 2013, Mr. French began working for Selkin Logging. After surgery related to his cancer treatment Mr. French began smoking marijuana. Mr. French was smoking marijuana for the treatment of pain. Throughout his employment with Selkin, Mr. French smoked marijuana.  Mr. French admitted that he would smoke marijuana while at work. It is important to note that Mr. French was not medically prescribed marijuana, nor was he legally entitled to possess marijuana. In this case Mr. French alleges that he missed medical appointments related to his cancer, on October 24th and December 4th, due to Selkin Logging. Mr French argued that Selkin was negligent in denying his requests for leaves related to medical appointments. In addition, Mr. French alleges that Selkin Logging had a duty to accommodate his need to smoke Marijuana while at work and therefore that his termination was a form of discrimination based physical disability contrary to the Code. In response to this allegation Selkin Logging indicated that they could not accommodate Mr. French when safety was at stake. In this case it was found that Selkin did not deny Mr. French leave to attend any medical appointments and that Selkin’s refusal to permit Mr. French to continue smoking marijuana at the workplace was a bona fide occupational requirement and that the termination of Mr. French’s employment was not a contravention of the Code.

Question(s) to be Determined:

1.    Was the complainant, John French, discriminated against in the area of employment on the ground of physical disability, contrary to s. 13 of Human Rights Code?

Findings:

1.    Was the complainant, John French, discriminated against in the area of employment on the ground of physical disability, contrary to s. 13 of Human Rights Code?

NO

Reasoning:

1.    In this case it was found that Selkin did not cause Mr. French to miss medical appointments on October 24th and December 4, 2013. The credibility of Mr. French’s testimony in relation to these missed medical appointments was called into question during the proceedings. According to Mr. French he felt compelled to work on the above listed dates because he was not informed who would be replacing him for those days.

In addressing this issue it was stated, “Selkin may not be a sophisticated employer, and may not have expressly reported to Mr. French which person would be replacing him, but that is not discrimination. Indeed Mr. French blames himself, attributing his dedication to the job as the reason he would not leave the Company without someone to replace him. However, this would be his decision, not a decision by Selkin to deny him leave; this is rationally improbable when considering the competing interests at stake; and, it is highly improbable that Mr. French would not have known which employees could replace him, even if he thought they were less capable than him” (para 104). In relation to this part of Mr. French’s complaint he did not establish that Selkin discriminated against him on the ground of physical disability.

In this case Mr. French also alleged that Selkin discriminated against him on the ground of physical disability in relation to the smoking of marijuana for his chronic generalized joint pain. Important to note in this case is the fact that Mr. French was not advised by his doctors to smoke marijuana, nor was he prescribed it.  Mr. French also did not possess a “marijuana card” permitting him to legally possess marijuana. In addition, it is important to point out that Selkin Logging has zero tolerance for drugs on the work site, as part of its safety plan.Ultimately it was concluded that Selkin’s refusal to permit Mr. French to continue smoking marijuana at the workplace was a bona fide occupational requirement (BFOR). In making this decision some important caveats were provided.

“Firstly, I would not conclude that a general rule prohibiting consumption of substances such as marijuana, narcotics or alcohol at the workplace would be outside the scope of an employer’s legitimate management rights. As a workplace rule at a logging operation, I find a zero tolerance policy for marijuana would satisfy the first two steps of the Meiorin test. However strict application of the zero tolerance rule, without consideration of accommodation, may offend the Code in circumstances where the individual may be legitimately using marijuana for medical purposes. The problem in this case is that Mr. French was not legitimately in possession and use of marijuana, and, he did not inform his employer he was using an impairing or potentially impairing substance at the workplace” (para 125 and 126).

In conclusion it was found that “Mr. French’s smoking of marijuana at work, without legal authorization and without medical authorization confirming that it was safe for him to do so, was an accommodation which his employer could not properly abet in the circumstances. It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship. Mr. French was the party best placed to propose an accommodation. However, at the time, and after his termination, Mr. French did not, and could not, provide Selkin with the information it would have required. That is not Selkin’s fault (para 132 and 133).