Law Times - Newsmakers

Mental health recognized TWO DECISIONS from the Law Society Tribunal changed the way that mental health issues of lawyers are recognized. In May, in Law Soci- ety of Ontario v. Burtt, Bencher Larry Banack found that the Law Society of Ontario had not done its duty to accommodate lawyer Jef- frey Burtt's disability under the province's Human Rights Code. The ruling said Burtt was accused of breaching the Rules of Profes- sional Conduct after he "failed to co-operate with the Law Society" in an investigation, but Burtt maintained that "he was not capable of responding as demanded by the Law Society by reason of a pre- viously documented disability that caused him to 'freeze' when confronted with the investigation." The ruling said Burtt testified during the hearing that "he was unable to respond in writing." Banack ultimately concluded that LSO investigators could have "taken information orally and re- duced it to writing for review," as well as "attended at his law office and obtained electronic copies of the client file." "Mental illness is a medical condition, not a personality defect," said the ruling. In July, another pivotal decision came, in Law Soci- ety of Ontario v. Yantha, 2018 ONLSTH 94, after the ruling found that Darwin Anthony Yantha had "engaged in misconduct." The ruling meant that the Law Society of Ontario tribunal proceeded with allowing a lawyer to surrender his licence instead of revoking it and looked at the LSO's duty to accommodate alcoholism and de- pression under the Ontario Human Rights Code. Both cases represented progress for the profession, said Theresa E. Miedema in a Law Times column in September on how to address mental health issues among lawyers. "Legal culture and the nature of legal training and practice include stumbling blocks to people dealing with mental health issues. We have to do better," said Miedema. — Gabrielle Giroday 2018 top news, newsmakers and cases 15 Legalization of recreational pot changes legal landscape New frontier affects many practice areas BY ALEXIA KAPRALOS, FOR LAW TIMES AFTER NEARLY a century of cannabis prohibition, Bill C-45, better known as the Cannabis Act, made recreational cannabis legal across Canada on Oct. 17, affecting a vast number of legal practice areas with it. From criminal law to labour and employment law to intellectual property law and beyond, can- nabis is shaping a new legal frontier. The Cannabis Act had its first reading in the Senate last year on Nov. 28, after being passed in the House of Commons the day before. Eventually, after making its way through the Senate, the bill received royal assent on June 21, 2018. Leading up to the legalization date, which was originally supposed to be July 1, each province dealt with deciding on a minimum age of pur- chase, a distribution model, home grow restric- tions and retail licensing, among other issues. In Ontario, once Doug Ford was elected pre- mier and the Progressive Conservatives took over the provincial government, the option for municipalities to opt out of Ontario's can- nabis retail plan was introduced. Municipalities were given a short window of time to decide against allowing bricks- and-mortar cannabis storefronts to operate in their jurisdiction. Once that period end- ed, the municipality could no longer opt out. But, if a municipality had opted out, lawyers predicted they would be likely to have the ability to opt back in at any time. Residents of areas that opted out would still have access to ordering legal cannabis through the official government website, the Ontario Cannabis Store. First Nations communities were also presented with a similar option to prevent bricks-and-mortar cannabis storefronts and deliveries from the provincial retail web- site to traditional lands. For these communities, this option would not be time sensitive. In addition to being able to purchase cannabis under the new law, Canadians are also able to legally cultivate their own cannabis plants (with restrictions and regulations varying by province). Some lawyers have argued that zoning bylaws around growing cannabis are vague. An example of this ambiguity is seen in an Ontario Superior Court of Justice case, Tay (Township) v. Fan (2018), which had to do with the growth of medical cannabis (rather than recreational). Medical cannabis, however, has been legal in Canada since 2001 under the Marihuana for Medical Purposes Regulations. "It's not exactly clear where that line would be drawn for it to be considered [a pro- cessing facility]. We know that it would be a contextual analysis," said lawyer Caryma Sa'd of [S]advocacy in Toronto to Legal Feeds. Another area to watch out for, and one lawyers are concerned with, is the issue that there is still no infallible way to detect cannabis impairment levels. As it stands, there are blood and urine sample tests that could detect the bodily pres- ence of tetrahydrocannabinol (the psychoactive ingredient in cannabis that gets users high), but there is evidence that suggests THC stays in the system even after the high feeling has worn off. There's also no way of knowing for sure just how impaired some- one is, unlike with alcohol, where a simple breathalyzer test would provide that infor- mation. There's also concern that legalized cannabis could mean a spike in human rights complaints about employers who fail to accommodate cannabis addiction issues or cannabis use disorder, Doug MacLeod, principal of MacLeod Law Firm in Toronto, told Law Times. "Being a recreational cannabis user doesn't give you any human rights protection; it's only when it rises to the level of an addiction," MacLeod says. "I think that when people get fired, they go to talk to a lawyer, and the lawyer comes up with different potential legal claims. I think this will be a new potential claim that lawyers will try out." MacLeod told Law Times that cannabis-related addiction could become a "staple claim" in employee termination cases, depending on the amount of evidence required. "What evidence of addiction do you have to lead? What signs of addiction are needed to impose a duty to inquire on the employer?" Another area of concern is that the Cannabis Act itself is ambiguous when it comes to understanding certain regulations. The language that governs the act "is broad enough that there is ambiguity," said Mark Gruchy, an associate with Gittens & Associates in St. John's. He said there are regulations on the promotion of cannabis and accessories through the bill but that con- fusion remains as to what exactly this means. Another issue with Canadian cannabis legalization is around privacy with credit card information for purchasers. Since cannabis remains an illegal substance in the United States but many credit card companies store their data there, some lawyers have expressed concern that other countries could find records of Canadians purchasing cannabis, potentially causing problems for them when crossing borders. With hardly any precedent in the courts and a whole new landscape, Canadians will have to see what 2019 will bring with legalized recreational cannabis. — With files from Legal Feeds and Law Times top stories Caryma Sa'd says zoning bylaws around what's considered a cannabis processing facility are 'not exactly clear.' What do your clients need? The means to move on. 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