Canadian Employment Law Today

Canadian Employment Law Today | 11 Canadian HR Reporter, a Thomson Reuters business 2017 More Cases reached (e.g. were any objective tests performed or was most of the information self-reported?) • Any treatment or medication that might impact the accommodation or the employ- ee's ability to perform her job. Of course, as highlighted above, each case will turn on its circumstances, includ- ing the particular form of accommodation requested. For more information see: • Renaud v. Central Okanagan School Dis- trict No. 23, 1992 CarswellBC 257 (S.C.C.). • Rhijnsburger v. Wal-Mart Canada Corp., 2013 HRTO 1109 (Ont. Human Rights Trib.). • Bottiglia v. Ottawa Catholic School Board, 2015 CarswellOnt 20617 (Ont. Human Rights Trib.). • Halliday v. Michelin North America (Can- ada) Ltd., 2006 CarswellNS 652 (N.S. Bd. of Inquiry). • Cole v. Bell Canada, 2007 CarswellNat 2701 (Can. Human Rights Trib.). • Capital Health Authority v. U.N.A., Local 33, CarswellAlta 1409 (Alta. Arb.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com. On Feb. 2, 2016, D & D was contracted to move a drilling rig from one site to another. Gilbert was assigned to do road patrol in her pilot truck on a gravel lease road between the two drilling sites, which were four kilo- metres apart. It was early in the morning and still dark, though the road had been grated and loose snow removed. Gilbert went around a corner in the road and lost control of the truck, sliding off the road and rolling it into the ditch. Another pilot truck driver arrived on the scene and found the truck lying on the driver's side with airbags deployed. Gilbert was standing on the driver's door collecting items from in- side the truck and putting them in a bag. She then crawled out of a window with the bag. e other pilot truck driver stepped out of her own truck to help and immediately smelled marijuana. Gilbert said she was un- injured and, according to the co-worker, was "walking and talking fine." Another driver in a large truck arrived to help and also smelled marijuana when he got out. He attached a chain to Gilbert's truck and pulled it upright and out of the ditch with a winch on his truck. Gilbert continued to collect items that had fallen out of the back of her pilot truck, and once her truck was out of the ditch, the three of them waited for a few minutes. Neither of the other drivers mentioned the smell of marijuana to Gilbert. Gilbert was able to start the truck and drive it to a spot in the road where she could pull over. e other pilot truck driver called D & D's health and safety co-ordinator to report the incident and mentioned she had smelled marijuana at the accident scene. e health and safety co-ordinator arrived at the scene about two hours later. Gilbert and the other pilot truck driver had been sitting in the latter's truck across the road from the destination site of the drilling rig. During this time, the other truck driver noticed an over- whelming smell of marijuana coming from Gilbert's bag, but still didn't mention it to her. e health and safety co-ordinator exam- ined Gilbert's truck and the accident scene and drove Gilbert back to Grande Prairie. During the drive, Gilbert appeared to be un- injured and coherent and she explained that she had been driving too fast, causing her to slide around the corner and into the ditch. However, the co-ordinator also noticed that Gilbert's bag smelled like marijuana. Post-incident drug test ordered e co-ordinator informed Gilbert she would have to take a post-incident drug test at the office, but she told him she thought she would fail it because she had been vaping marijuana two days earlier. She denied using the drug at the time of the accident, though his truck smelled strongly of marijuana after the bag had been in it during the drive. Gil- bert spent some of the time in the truck on the phone with her son. Shortly before Gilbert was to take the test, the co-ordinator saw her go outside the of- fice and meet someone who handed her something. Soon after, she went to the wash- room and returned with a urine sample. e health and safety administrator per- forming the test noticed that the tempera- ture strip on the sample wasn't activated, which meant the urine sample wasn't warm enough to be tested. e administrator put a gloved finger inside and found the sample to be cold. When asked why her sample was cold, Gilbert responded that she had just come in from outside. She was told to provide anoth- er sample which tested positive for THC, the intoxicating compound in marijuana. D & D's general manager was informed of the test results and met with Gilbert. Gil- bert told him she didn't have any drug prob- lems and didn't need any help, so the gen- eral manager terminated her employment. e next day, Gilbert provided a doctor's note to the health and safety co-ordinator that stated she would require modified du- ties as a result of injuries from the accident. e co-ordinator hadn't yet been informed that Gilbert had been dismissed, so he con- tacted her and offered her modified duties, which Gilbert accepted. e day after that, Gilbert provided a note from a different doc- tor that said she was unable to work and she withdrew her acceptance of modified duties. Gilbert filed a complaint for unjust dis- missal under the Canada Labour Code. e adjudicator found that the evidence showed Gilbert's 2016 truck accident was caused by driving too fast, and this caused significant damage to her truck. is was a breach of her responsibility for driving safely and appropriately for road conditions, and she had a previous written warning for speeding, along with previous accidents causing dam- age to company vehicles. Based on D & D's progressive disciplinary policy, Gilbert would have been subject to a suspension without pay for the accident, given her "pattern of careless driving behaviour," the adjudicator said. e adjudicator also found that there was no evidence Gilbert was impaired at the time of the accident. Despite the fact everyone smelled marijuana in her bag, all witnesses agreed she appeared to be coherent and not impaired, and no one felt the need to ask her about it. In addition, the positive test for THC did not demonstrate impairment because it can remain in the system long after impair- ment has ceased — and Gilbert acknowl- edged consuming marijuana two days earlier. However, the cold urine sample combined with the fact Gilbert was observed being given something by someone shortly be- fore the test supported the idea that she at- tempted to falsify her drug test results. is required planning and made it difficult for D & D to manage its workplace safety. Gilbert's dishonesty constituted serious misconduct that justified dismissal, said the adjudicator. "e issue here is not job performance, though there were demonstrated issues in that respect particularly for a professional driver related to driver safety, such as that some immediate step like a suspension would have been appropriate," the adjudi- cator said. "Rather, in my view, it was the dishonesty on the part of Ms. Gilbert that effectively undermined the viability of the employment relationship because it demon- strated planning and forethought, involved others and was aimed at the integrity of a monitoring process by which the employer could try to manage the risk presented by the employee's behaviour." See Gilbert and D & D Energy Services Ltd., Re, 2017 CarswellNat 2499 (Can. Lab. Code Adj.). Worker seen with someone before providing cold sample Accommodation a two-way street « from FALSIFIED on page 1 « from ASK AN EXPERT on page 2

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