Human Rights Tribunal of Ontario Upholds Termination of Employee Using Medical Marijuana

Human Rights Tribunal of Ontario Upholds Termination of Employee Using Medical Marijuana in Aitchison v. L&L Painting and Decorating Ltd., 2018 HRTO 238


Naomi R. Rozenberg, Associate
Phone:  604-685-3911



The Human Rights Tribunal of Ontario has ruled that an employee does not have an absolute right to smoke marijuana at work, even for legitimate medicinal purposes. An employer is not required to accommodate an employee’s preferences with regard to using cannabis if doing so would amount to undue hardship.

From 2011 to 2015, James Aitchison worked for L&L Painting and Decorating Ltd. as a seasonal painter and restoration worker for high-rise buildings. His work was performed on a swing stage that was suspended on the outside of the building. Workers were partnered up so there were at least two employees on each swing stage.

L&L had a “zero tolerance” policy in place for the use of intoxicating drugs and alcohol on the worksite.  At the beginning of each work season, employees were required to watch a training video which described the zero tolerance policy. In addition, L&L was obligated to adopt the general contractor’s zero tolerance drugs and alcohol policy. Mr. Aitchison fully understood that intoxicating beverages and drugs were not allowed on site.

Mr. Aitchison suffered from chronic pain in his back and neck as a result of a degenerative disc disease. In 2012, he began self-medicating with cannabis. In late 2014, his family doctor referred him to a pain specialist, Dr. Price, who prescribed him medical marijuana as part of a program for pain control.  Mr. Aitchison began using prescribed medical marijuana in March 2015. Mr. Aitchison did not discuss with Dr. Price whether he could use marijuana at work.

According to Mr. Aitchison, in 2014 he approached Peter Ujka, the site supervisor, and asked that he be allowed to using medicinal marijuana on his breaks to control his pain. He claimed that Mr. Ujka did not have a problem with his request, but asked that he smoke on the ground floor. However, Mr. Ujka denied any knowledge that Mr. Aitchison used marijuana at work.

In June 2015, Mr. Aitchison was working on a swing stage outside the 37th floor of a high rise building. He claimed that he had an understanding with Mr. Ujka that he could go out onto the swing stage by himself at the beginning of his break to smoke marijuana.

On June 18, 2015, the foreman claimed that he and Mr. Ujka discovered Mr. Aitchison smoking a joint alone on a swing stage. He was not tethered to the stage and not wearing his hard hat. A few weeks later, Mr. Aitchison was terminated for violating the company’s zero tolerance drug policy.

Mr. Aitchison filed a human rights complaint on the ground of discrimination based on disability, claiming that his disability was a factor in his termination that that his employer failed to accommodate him. He did not dispute that he used marijuana at work. Rather, Mr. Aitchison argued as follows:

  • He used marijuana for medicinal purposes, and with the full knowledge and consent of his supervisor.
  • L&L’s zero tolerance policy was discriminatory in that it failed to take an individualized approach to considering his accommodation needs.
  • L&L should have inquired whether his use of cannabis was for medical purposes, or possibly part of an addiction.


The Tribunal accepted that Mr. Aitchison has a disability within the meaning of the Human Rights Code. However, given the health and safety concerns particular to this workplace, it concluded that the termination was not discriminatory for the following reasons:

  • There was no evidence that Mr. Aitchison requested an accommodation with respect to his marijuana use.
  • The Tribunal did not accept Mr. Aitchison’s claim that his supervisor was aware of his marijuana use and condoned it.
  • Aitchison took it upon himself to unilaterally use marijuana at work without authorization from his employer or his treating physician.
  • Price who testified that had he known Mr. Aitchison’s job involved working on the outside of a high-rise building, he would not have authorized Mr. Aitchison to medicate at work.


The Tribunal emphasized that Mr. Aitchison’s actions represented a genuine health and safety risk given the safety sensitive nature of the job site. The employee worked on the 37th floor of a high-rise tower on a swing stage the outside of the building.  If he was impaired even in the slightest and it resulted in an accident, such as him dropping a tool, the consequences would be catastrophic.

The Tribunal also found that the “zero tolerance” policy was a bona fide requirement of the job. It was reasonably related to the objectives of health and safety. Prohibiting the use of impairing drugs on the construction site was reasonable, given the risks involved in any workplace errors. In addition, the policy did not impose automatic termination as a condition. Rather, it only required the removal of an intoxicated employee from the job site.

An employer should consult with an employment lawyer before firing an employee who has a disability or injury. In addition, a company’s drug and alcohol policy should be drafted or reviewed by an employment lawyer to ensure that:

  • The purpose of the policy is rationally connected to legitimate health and safety on the job site;
  • The policy is adopted with an honest and good faith belief that it was necessary to the fulfillment of that purpose; and
  • The conditions imposed by the policy are reasonably necessary to the accomplishment of this purpose, in that it is impossible to accommodate an employee without imposing undue hardship.


WHAT WE DO:  Lesperance Mendes provides practical advice and cost-effective legal services to employers and employees regarding human rights complaints and wrongful dismissal actions.  Our team regularly advises employers on taking proactive steps to avoid potential lawsuits and complaints.  For more information or to book an appointment, contact Naomi Rozenberg at 604-685-3911 or

THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied on upon without independent legal advice.