Law Times

Page 6 OctOber 15, 2018 • Law times www.lawtimesnews.com Liability for impaired employees unfair BY IAN HARVEY T he world as we know it changes this week as cannabis is decrim- inalized. For members of the bar across Canada, it's a brave new world. The disruptive change from cannabis decriminalization will resonate through all sectors of our society and the courts. For example, those who represent people who are charged with impaired driving offences may have had some ar- rows removed from their quiver through the changes enacted in June in prepara- tion for this change. However, they've been given a few new sharp points to fire back at the Crown. They may ask: How accurate is the newly approved saliva test roadside ma- chine? How sensitive is it if not set up on site properly? How much training did the officer get? What's reasonable cause for a cannabis test? How sensitive are the machines to false positives if the ambient temperature isn't optimum? And what's the threshold for impair- ment for drivers with cannabis? Is it a shot in the dark? Where's the science parallel to the alcohol limits? Who is going to be the lucky — un- lucky — test case that proceeds all the way to the Supreme Court of Canada? Perhaps the one sector where this seismic shift will be most felt is the construc- tion industry. Norm Keith, an Ontario Health and Safety practitioner at Fasken Mar- tineau DuMoulin LLP in Toronto, says the regulations are woefully underprepared. "There are three indus- tries where it is expressly for- bidden by law for employees to be impaired from drugs or alcohol on the job," he says. "Ontario Health and Safety regula- tions expressly prohibit impairment or the presence of alcohol or drugs in work- places for mines and mine plants, off- shore oil and gas and commercial diving." However, Keith says, the same rules don't require construction workers to be drug or alcohol free and that puts an un- fair risk on employers. "Construction sites are danger- ous places, we know that," he says. "It's dangerous not only for the person us- ing drugs or alcohol but those working around them and even bystanders if something goes wrong." Even commercial drivers face a zero-tolerance threshold of cannabis in their system, yet it is well known in the con- struction industry that work- ers consume marijuana, often during their lunch breaks and sometimes even before getting to the site, says Keith. Each of the three sectors named is covered under a spe- cific section of the Occupa- tional Health and Safety Act. However, the regulations also allow for those with a prescription for a drug that includes cannabis to use it af- ter "establishing medical proof thereof." Asked about the gap in OHS regula- tions, the Ministry of Labour referred Law Times to a speech by Attorney Gen- eral Carolyn Mulroney at the Empire Club of Canada last week in which she said only that "employers need to take a look at their guidelines, you don't want your employees working impaired and cannabis is impairing. I'm sure most employers have guidelines that say you cannot come to work impaired." She also referred to the need for the Federal government to approve more forms of cannabis testing equipment so it can be rolled out. However, the law is clear that employee can be only randomly tested for drugs or alcohol at work in exceptional circumstances. Neither the AG nor the MOL re- sponded directly to the issue of con- struction sites and cannabis. In reality, it's open season on con- struction, Keith says, because supervi- sors, project managers and others could be held liable if there's an incident that is ultimately traced back to cannabis us- age and a court determines there wasn't enough due diligence to prevent the drug's consumption. Drug testing is off the table, so that's not an option, he says, because it's con- sidered "discriminatory" in most cases. "I know the construction industry associations have made efforts to talk to the Ministry of Labour about this," says Keith. "But they're so overwhelmed, it just isn't getting on to anyone's agenda." And that inevitably adds up to trou- ble right around the next corner. LT uIan Harvey has been a journalist for more than 41 years, writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. LT.editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $205.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $199 + HST per year for online only. Single copies are $5.00. Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Keith Fulford at .............. 416-649-9585 . . . . . . . . . . . . . . . . . . . . . . or fax: 416-649-7870 keith.fulford@thomsonreuters.com SALES AND BUSINESS DEVELOPMENT Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Sales Manager Paul Burton ............................................ 416-649-9928 paul.burton@tr.com Consultant, Strategy and Business Development: Ivan Ivanovitch ...................................... 416-887-4300 ivan.ivanovitch@tr.com Business Development Consultant: Kimberlee Pascoe .................................. 416-996-1739 kimberlee.pascoe@tr.com Account Executive: Steffanie Munroe ................................... 416-315-5879 steffanie.munroe@tr.com Law Times Thomson Reuters Canada Ltd., One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com LT.editor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . Anita Balakrishnan Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford The pendulum swings I f nature exists within a continuum, continually returning to a bal- anced state, then I think it's fair to apply the same principles to our social structures. Some Ontario lawyers have been responding to the recent labour law changes promised by the provincial govern- ment by highlighting their clients' frustration with the backing and forthing of expectations. Jodi Gallagher Healy, a London lawyer, says her clients consider Bill 148 an overreach by the previous Liberal gov- ernment. "Labour law is often like a pendulum. It swings one way and then it swings the other depending on what kind of government is in power," she says. "Some of the employers I work with were of the view that, under the Liberals, the pendulum swung too far." The pendulum approach is an appropriate one, though a sense of annoyance with the expense and effort to meet changing policies is also fair. There is a cost incurred by uncertainty. (And for that matter, there is a cost to f lexibility.) That is why, beyond how Ontario law impacts us, lawyers would do well to review an excellent set of stories looking at intellectual prop- erty law, which highlights changes made and changes that should be made. One feature illuminates how trademark law is modernizing after two rulings that allow foreign businesses to keep their marks, even without having physical properties in Canada. Another addresses Canada's (embarrassing) placement on the U.S. Trade Representative's priority watch list for intellectual property rights over what it says is "poor border enforcement generally and, in particular, lack of customs au- thority to inspect or detain suspected counterfeit or pirated goods shipped through Canada." Two columnists — Doron Gold and Sarah Molyneaux — look at how law firms must become more f lexible at meeting the needs of their employees and judging prospective employees. Part of imparting great advice is foreseeing which way the pendulum will go. LT Queen's Park Ian Harvey

• Cover