Law Times

Page 12 May 28, 2018 • Law TiMes www.lawtimesnews.com George Waggott, a sole prac- titioner in Toronto, says there is now a greater recognition about the need for a process in negotia- tions in order to have integrity. "It's not just a pendulum swinging back and forth," says Waggott. "We've actually re-set where the middle is. I think people rec- ognize now that there's a more broad piece and there does need to be a more proper process to be followed. I don't think that's just with public bargaining." Waggott says it also applies to how labour boards have in- terpreted and breathed more life into bargaining processes and the rights to unions. "All of the substantive aspects of negotiations are now more likely to be scrutinized," says Waggott. "It doesn't mean em- ployers like it, but it's what we face. We have to be a little more sophisticated in how we're going to deal with the whole process." Waggott says that while Sas- katchewan Federation of La- bour has some aspects that are unique, the bigger part is that there must be a process that, even if there is no right to strike, there has to be a mechanism to get a collective agreement. Waggott says strikes are more accepted now in terms of public perception, so it makes a difference what the Supreme Court has ruled in terms of the right to strike. "This makes private sector unions some of the biggest bene- ficiaries of these decisions," adds Waggott. LT Dutton adds that existing policies may need to be updated if they simply specify that "nar- cotics" or "illegal drugs" are not allowed, so as to ensure that they properly capture legal recre- ational cannabis. "The Supreme Court has added reason to the regulation of workplaces, especially with respect to workplaces where safety is an issue," says Dutton. Cukierman says he has been advising clients to ensure there is no unintentional loophole in the language around cannabis use in their existing drug policies. With regard to the SCC deci- sion in Elk Valley, Dutton says, the mere presence of addiction should not mean an employer can't take action. Richard Charney, global head of employment and labour with Norton Rose Fulbright Canada LLP in Toronto, says that where there is a claim that cannabis use is related to an addiction, there is the potential to raise human rights issues, but it will be a high bar. "The whole rationale for le- galizing marijuana in Canada is that, in contrast to some other drugs, it's not physically addic- tive," says Charney. "Perhaps the medical jury is still out, but for anyone to rely on that argument, they're going to really have to prove their point with great dif- ficulty." Charney adds that with re- gard to Elk Valley, it's important to note that the Supreme Court found that the employee had the capacity to either stop us- ing drugs or to disclose per the policy. "It's a fascinating but ut- terly commonsensical assertion because society frowns upon impaired driving," says Char- ney. "The court has recognized that ability to make choices, and there's no reason to believe that the addiction diminishes his ability to comply with [the] terms of the policy." Charney says the lesson out of Elk Valley for employers is FOCUS Continued from page 10 Continued from page 11 Clients looking at banning cannabis use in workplace that the drafting of workplace policies is critically important and that the focus on the letter of termination showed that it was very carefully drafted to note that termination was for failure to follow policy rather than the fact of addiction. "Lawyers who represent em- ployers ought to keep that in mind," says Charney. "Don't al- low human resources people to put together a template." Dutton says that for clients who are looking to draft policies around either banning the use of cannabis or for drug testing, those policies need to be properly shared with the staff by means of a meeting. Employers also need to ensure that the policies are sent by mass email to the entire company, as well as posted be- side the Employment Standards Act poster that is mandated to be in the workplace, he adds. "That way, the employer can make a credible argument later, if they're sued, that the employee ought to have known about the policy," says Dutton. He says that for those em- ployees who break the policies but who aren't in a safety-sensi- tive environment, they should be written up but not fired for just cause unless it is a repeat violation. "The law on marijuana at work is going to be tested and the courts will look at the law of drunkenness at work," says Dut- ton. "The law will be analogous to what happens when some- body has a few beers at lunch, and there's a number of cases that say, generally speaking, it's not just cause." Dutton notes that while this doesn't apply to airline pilots, the law says that there needs to be intoxication and that proving that with cannabis would likely involve using the law around roadside testing. Cukierman agrees that anal- ogies to alcohol policies can be drawn and says that similar con- siderations can be drawn with recreational cannabis use. LT Scrutiny on negotiations more likely Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. 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