The Grass Isnt Always The Grass Isn t Always Greener: Legal Issues - - PowerPoint PPT Presentation

The Grass Isn’t Always The Grass Isn t Always Greener: Legal Issues for Greener: Legal Issues for Insurers of Vehicles Post Legalization

Jim Tomlinson Partner

A New Legislative Landscape

Federal legislation passed on June 21, 2018:

• Possession: Cannabis Act SC 2018 c 16
• Possession: Cannabis Act, SC 2018, c 16.
• Impaired driving and new police powers: Bill C-46 (the

Impaired Driving Act), SC 2018, c 21. Consequential amendments to other federal statutes

• Consequential amendments to other federal statutes

Provincial legislation has been more piecemeal:

• Possession, transport and youths: Cannabis Control Act,

2017, SO 2017, c 26, Sch 1.

• Commercial sale: Cannabis Licence Act, 2018, SO 2018, c

12, Sch 2.

• Amendments to the Smoke-Free Ontario Act, 2017, SO

2017, c 26, Sch 3.

It’s Still Illegal to Drive High

The former impaired driving provisions in the Criminal Code, RSC 1985, c C-46 were completely repealed and replaced in the legalization process. Section 320.14(1) establishes a new, wider offence that criminalizes impaired driving while creating measurable blood drug limits for impaired driving while creating measurable blood drug limits for cannabis:

• A

criminal

• ffence

is committed by anyone who

• perates

a “conveyance” while they are, inter alia: conveyance while they are, inter alia:

• (a) Impaired by drugs and/or alcohol; or
• (b) Have a blood drug concentration exceeding the amount prescribed by

regulation.

• “Conveyance” is defined widely to include, among other things, motor

vehicles, planes, boats and trains.

But Illegality Does Not Shield Insurers

In the automobile context, a third party’s right to i t j di d b d i ’ recovery is not prejudiced by a driver’s intoxication:

I A t RSO 1990 I 8 258(4)( )

• Insurance Act, RSO 1990, c I.8, s258(4)(c).

In the marine context, it will depend on the di f l i i th li wording of any exclusions in the policy:

• See e.g. Heffernan Estate v Lloyd’s Canada,

2015 ONSC 853 2015 ONSC 853.

Risks Relating to Intoxication

Scenario 1: A mechanic intoxicated by cannabis works on a commercial vehicle Due to his intoxication he improperly commercial vehicle. Due to his intoxication, he improperly fastens a wheel to the vehicle. During operation, the wheel falls off, causing a fatality. Scenario 2: A commercial marine vessel pulls into port. During mooring, a dockworker, who smoked cannabis before his shift forgot to tend to one of the mooring lines before his shift, forgot to tend to one of the mooring lines. The boat drifts into another vessel, causing hull damage.

The Cost of Legalization

As cannabis becomes easier to obtain and more socially acceptable we can expect marijuana-related transportation acceptable, we can expect marijuana related transportation losses to increase. This is particularly true for employers whose employees This is particularly true for employers whose employees

• perate work vehicles:
• Highway Traffic Act, RSO 1990, c H.8, s192(2).

Risk management professionals should be alert to issues and strategies that can minimize both the probability and quantum of marijuana-related transportation losses.

What’s the Legal Context?

Consider the case of a painter, driving a work van after smoking cannabis: he doesn’t notice that a child is crossing smoking cannabis: he doesn t notice that a child is crossing the street until it’s too late. A claimant would be required to show that the defendant A claimant would be required to show that the defendant failed to take reasonable care to avoid a loss:

• An assessment of what amounts to reasonable care would

depend

• n

prior case law reasonable prudence and a depend

• n

prior case law, reasonable prudence and a comparative analysis of industry practices.

• Exception:

In motor vehicle cases involving an employee negligently driving an employer’s vehicle proof of the employer’s negligently driving an employer s vehicle, proof of the employer s

• wnership is sufficient proof of the owner’s liability (Highway

Traffic Act, RSO 1990, c H.8, s192(2)).

Inaction Is not a Strategy

In the painter’s work van example, risk is t d b th i ti f b i i created by the inaction

• f

a business in combatting impaired driving just as much as it is by the driver’s choice to drive impaired is by the driver s choice to drive impaired. Risk management professionals can play a pivotal role in controlling an insurer’s exposure to marijuana-related losses by driving changes th i tit ti l l l f b i

• n the institutional level of a business.

Between a Rock and a Hard Place

Cannabis is an intoxicant that increases the risk of vehicle- related property damage and personal injury related property damage and personal injury. However, employers are subject to countervailing duties to accommodate medicinal users of cannabis to the point of accommodate medicinal users of cannabis to the point of undue hardship. Effective risk management involves protecting against Effective risk management involves protecting against cannabis-related transportation losses without triggering workplace law issues.

Sources Informing the Standard of Care

• 1. Legislation:
• Particularly touching on the consumption and storage of cannabis
• Particularly touching on the consumption and storage of cannabis,

as well as an employer’s duty to accommodate medicinal usage.

• 2. Case law:
• Especially cases involving alcohol.
• 3. Industry guidelines and best practices.
• 4. A comparative analysis between entities similar to the defendant:
• E.g. how do the defendant’s cannabis policies compare to ABC

Trucking or XYZ Haulage? Trucking or XYZ Haulage?

Legislation: Consumption and Storage

Drivers and passengers of motor vehicles and boats forbidden from consuming cannabis: boats forbidden from consuming cannabis:

• Drivers:

Criminal Code, RSC 1985, c C-46, s320.14(1); Smoke-Free Ontario Act, 2017, SO 2017, ( ); , , , c 26 Sch 3, s17.1(a) [Smoke-Free Ontario Act].

• Passengers: Smoke-Free Ontario Act, s17.1(b).

Marijuana must be transported in

• riginal,

unopened packaging or not readily-accessible to i t hi l b t anyone in motor vehicle or boat:

• Cannabis Control Act, SO 2017, c 26, Sch 1, s12.

Legislation: Workplace Consumption

In a provincially-regulated workplace (most workplaces), cannabis may not be consumed in any place covered by a cannabis may not be consumed in any place covered by a roof and where the public is permitted, including a vehicle:

• Smoke-Free Ontario Act, 2017, SO 2017, c 26, Sch 3

s12. In a federally-regulated workplace (e.g. interprovincial trucking commercial boating and ports) cannabis may only trucking, commercial boating and ports), cannabis may only be consumed in a “designated smoking area”:

• Non-smokers’ Health Act, RSC 1985, c 15 (4th Supp),

s4(1).

Legislation: Human Rights Issues

Cannabis continues to be used for medicinal purposes. Despite the need to adhere to legislation regulating the consumption and transport of cannabis, employers must accommodate medicinal use to the point

• f

undue accommodate medicinal use to the point

• f

undue hardship:

• Human Rights Code, RSO 1990, c H.19, s5(1)

C di H Ri ht A t RSC 1985 H 6 7

• Canadian Human Rights Act, RSC 1985, c H.6, s7.

A “zero tolerance” policy might be problematic in some industries and/or some employee roles. p y

Jacobsen v Nike Canada (1996), 19 BCLR (3d) 63 (SupCt) (SupCt)

Facts: Jacobsen’s employer, Nike, sent him to set up a trade show and required him to use his own car to get to work, as he was transporting

• materials. During the day, Nike supplied alcohol. Jacobsen and others

were told not to get drunk, but no other restrictions were placed on the drinking. Although Jacobsen drank more at a bar after leaving work, the Court held Nike liable for the injuries he sustained while driving home. Nike fell short of the standard of care by introducing drinking and driving into fell short of the standard of care by introducing drinking and driving into the workplace, failing to monitor consumption and because it ought to have known of Jacobsen’s inebriation.

John v Flynn (2001), 54 OR (3d) 774 (CA)

Facts: Flynn was working the night shift at a forge. During his breaks, he secretly drank beers in his private vehicle. His employer was aware

• f his drinking problem, but not that he was drinking during the night in
• question. When Flynn left work, he continued drinking at a bar and got

into an accident, injuring John. The Court refused to hold Flynn’s employer liable. The employer did not have a general duty to ensure that all employees were safe to drive home, even though it knew of Flynn’s drinking problem, as it did not home, even though it knew of Flynn s drinking problem, as it did not supply the alcohol and did not condone the drinking.

Mugford v Weber, 2004 ABCA 145

Facts: Weber was supplied with a work vehicle, which he was permitted to drive to and from work. However, he was not to drive the vehicle for purposes unrelated to work or while intoxicated. After arriving at home, Weber got drunk and injured Mugford while driving to see friends. The Court used an Alberta provision essentially the same as Section The Court used an Alberta provision essentially the same as Section 192(2) of Ontario’s Highway Traffic Act to find the employer, who

• wned the vehicle, liable. This was because Weber had consent to use

and possess his employer’s vehicle, even though he broke the policies and possess his employer s vehicle, even though he broke the policies the employer placed on its use.

How About Random Drug Tests?

Unionized workplaces: random drug testing

• f

all employees is not automatically justified even in dangerous employees is not automatically justified, even in dangerous workplaces, but must instead be a proportional result to workplaces demonstrably affected by drug use.

I i P l & P Ltd CEP L l 30 2013 SCC 34

• Irving Pulp & Paper Ltd v CEP, Local 30, 2013 SCC 34.

Non-unionized workplaces: random drug testing may be permissible if the employer can demonstrate a bona fide p p y

• ccupational requirement and medicinal or addicted users

are accommodated to the point of undue hardship

Entrop v Imperial Oil Limited (2000) 50 OR (3d) 18 (CA)

• Entrop v Imperial Oil Limited (2000), 50 OR (3d) 18 (CA).

Employer Prohibitions on Consumption

Employers have the authority to ban workplace ti f bi th j b consumption

• f

cannabis

• r
• n-the-job

impairment, just as they may do with alcohol. The law has yet to provide guidance on the legality of moves by certain employers, like Air Canada and certain police forces, to prohibit

• ff-duty consumption.

Industry Guidelines and Best Practices

Inside the four corners of the law (limits on consumption v limits on an employer’s ability to prohibit usage) is the limits on an employer s ability to prohibit usage) is the employer’s latitude to effectively manage risk due to cannabis-related losses. Industry guidelines and best practices provide means to avoid instances where liability applies automatically and may protect defendants from liability in instances where may protect defendants from liability in instances where liability is contingent on deviation from a standard of care.

“Clearing the Haze: The Impact of Marijuana in the Workplace” Workplace

A 2017 publication of Ontario’s Human Resources Professionals Association. Among its recommendations for employers:

• ‘Employers should enact a clear drug policy that includes the definition
• f “impairment” in a way that captures medical marijuana use and
• f

impairment in a way that captures medical marijuana use and when/where it is acceptable. Policies on drug use must define what it means to be impaired and provide details on how the policy applies to medical cannabis. Any prescription drug policies should be enforced in a uniform manner to ensure that medical marijuana is treated equally with

• ther prescriptions.’

Our thought: Supervisors should also be trained to recognize when l ti l l th i f t iti iti th employees, particularly those in safety-sensitive positions, cross the threshold of “impairment.”

“HR Challenges of Marijuana in the Workplace”

A June 2017 publication of the Canadian Trucking Alliance. A it d ti f l i th i d t Among its recommendations for employers in the industry:

• Prohibit possession of intoxicants at work.
• Arrange for employees found to be intoxicated at work to be transported

to their residence to their residence.

• Reliance on alcohol and drug testing.
• Provide access to a confidential Employee and Family Assistance to

employees suffering from drug or alcohol issues employees suffering from drug or alcohol issues.

• Expanding intoxication policies to include those who are not drivers, but

work around them, including dispatchers, mechanics and warehouse staff.

Our thought: For reasons discussed previously, employer’s should be careful about executing alcohol and drug policies.

“Workplace Strategies: Risk of Impairment from Cannabis” Cannabis

A September 2018 publication of the Canadian Centre for Occupational Health and Safety Occupational Health and Safety. Among the recommendations for employers:

• Providing a location for users of medicinal cannabis to consume

it without second-hand exposure to others.

• Developing a clear definition of what amounts to “impairment.”
• Require employees to confidentially report each other and

themselves when impairment is suspected.

Our thought: Providing a segregated location for medicinal users to consume cannabis is a powerful method of users to consume cannabis is a powerful method of protecting those in safety-sensitive positions from inadvertent intoxication.