Kootnekoff: Is legalization really a big deal?

“Legalization”: Is It Really A Big Deal?

There is a sense in some circles that it’s not.

We have a Prime Minister who is delivering on an election promise to legalize cannabis.

On Oct. 17, the Cannabis Act will be in force. It will create a legal framework for controlling the production, distribution, sale and possession of cannabis across Canada.

The internet is abound with information on “how to” get into this lucrative market.

Some have estimated that with legalization, use could nearly double, and that the highest use will be in British Columbia.

A 2017 report on the impact of legalization in Colorado reported that cannabis legislation there prompted a 71 per cent increase in the average past month use for adults 26 years of age and older. These are people of working age.

Cannabis is addictive. Cannabis causes impairment, including decision-making and psychomotor responses. THC, the active ingredient, has a long half-life. This distinguishes marijuana from alcohol.

The extent of impairment and its longevity depends on a number of factors. A 2015 study concluded that “there is ample evidence indicating that neurocognitive impairment from cannabis persists from hours to weeks. A return to a non-intoxicated state does not ensure a full return of neurocognitive function in the workplace …ensuring safety of workers who are under the influence or who recently consumed cannabis is not possible.”

This means that an individual could consume cannabis on his/her days off, and regardless of how normal he or she may feel, high enough levels of THC may remain in his or her system to affect job performance.

While this remains a rapidly developing area of law, and each case is dependent on its facts, a trend is developing with courts becoming more supportive of an employer’s ability to terminate those under the influence while at work, particularly in safety sensitive environments.

At the same time, it far from “easy” for an employer to necessarily win these cases in court. Employers are not winning every one of these cases.

Employers would be wise to ensure that, among other things, they have in place adequate policies, clarifying their position on employee drug and alcohol use. This is particularly so for those with employees in positions that carry a risk of harm to themselves or others. An employer with employees performing safety sensitive activities, and that fails to implement such policies may find itself to be in breach of the Workers’ Compensation Act and the OH&S Regulations.

Such an employer is also likely to find it more challenging to legally dismiss employees for alcohol or drug use.

Employers who are not on top of these issues may also find that those who lose their jobs elsewhere as a result of drug or alcohol use may gravitate toward their organization. Once an employer becomes this type of “magnet”, it is just a matter of time before productivity and profits are likely to fall.

Employees would be well advised to abstain or restrict their use, including on days off, especially if their employer has a policy, or if they may engage in safety-sensitive activities at work, such as driving.

Employers who suspect that an employee may be under the influence, and employees who are concerned, ought to seek immediate legal advice from an employment lawyer with prior experience handling such cases.

Another issue that arises with legalization of dope is host liability.

As any bartender knows, an operator of a commercial establishment that sells liquor is responsible to ensure that its customers don’t pose a danger to others.

If an intoxicated patron then takes the wheel, and causes a collision, then the establishment as host is likely to have at least partial liability for the injuries or lives lost. That liability can be substantial.

The media has reported that certain coffee shops plan to sell weed.

I wonder what procedures these coffee shops will have in place, if any, to limit their liability as hosts to those whose driving abilities may be affected.

So, back to the question. Is legalization really a big deal?

Well, the day after the Cannabis Act is brought into force, we will all wake up as we did the day before, and life will go on.

But if you’re an individual who is losing his or her job, an employer who is facing a legal battle over an employee terminated for drug or alcohol use, or someone who has lost a dear friend or family member to a workplace incident in which high levels of THC were involved, you might say, yes, absolutely, it most certainly is.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca .

About the Author

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015.

Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides.

Susan can be reached through www.inspirelaw.ca or by phone at 250-764-7710 (or 1-866-354-9889), and is pleased to receive feedback and ideas for future articles.

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