International brotherhood of electrical workers, local 1620 Applicant And: Lower Churchill Transmission Construction Employers' Association Inc. v. Valard Construction LP, 2019 NLSC 48

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc. , 2019 NLSC 48 Date : February 22 2019 Docket : 201801G4330 Between: International brotherhood of electrical workers, local 1620 Applicant And: Lower Churchill Transmission Construction Employers' Association Inc. and Valard Construction LP Respondent Before: Justice Daniel M. Boone On Judicial Review From: A Decision of a consensual arbitral tribunal (John F.

Roil, Q.C., Sole Arbitrator) dated the 30 th day of April, 2018. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 21, 2019

Summary: This is a judicial review of a labour arbitrator’s decision involving the limits of accommodation that ought to be considered in respect of the use of medically prescribed cannabis by an employee working in a safety-sensitive workplace. The Arbitrator based his findings on resolution of the evidence before him and his decision was found to be within the range of reasonable outcomes. The Application to quash the Award is dismissed.

Appearances: Daria A. Strachan Appearing on behalf of the Applicant Darren C. Stratton Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: International Brotherhood Lower Churchill Transmission Construction Employers’ Assn. Inc. v. IBEW, Local1620 (Tizzard), Re, 2018 CarswellNfld 198, 136 C.L.A.S. 26; Dunsmuir v. New Brunswick v., 2008 SCC 9; Canada (Minister ofCitizenship and Immigration) v Khosa , 2009 SCC 12; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61; N.L.N.U.v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62; Muskrat Falls Employers’ Assn. Inc. v.

Resource Development TradesCouncil of Newfoundland & Labrador, 2015 NLTD(G) 150; British Columbia (Public Service Employee Relations Commission) v.B.C.G.E.U., (SCC), [1999] 3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia(Council of Human Rights), (SCC), [1999] 3 S.C.R. 868; IWA-Canada v. Weyerhauser Co, (BCLA), 2004 CarswellBC 2039, 127 L.A.C. (4th) 73; IBEW, Local 1620 v. Lower Churchill Transmission Construction Employers’ Assn.Inc., 2016 NLTD(G) 192; Calgary (City) v.

CUPE, Local 37 (Hanmore) Re, 2015 CarswellAlta 1834, 261 L.A.C. (4th) 1 STATUTES CONSIDERED: Human Rights Act, 2010, S.N.L. 2010, c. H-13.1; Labour Relations Act, R.S.N.L. 1990, c. L-1;Occupational Health and Safety Regulations, Nlfd. Reg 5/12 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched.

D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This case arises by way of judicial review of a decision of a labour arbitrator involving the limits of accommodation thatought to be considered in respect of the use of medically prescribed cannabis by an employee working in a safety-sensitive workplace. [2] A Grievance was filed by the Applicant Union on behalf of a Union Member (the “Grievor”) who was denied employmenton the Lower Churchill Transmission Construction Project due to his use of cannabis under medical prescription.

The Grievance wasdismissed by Arbitrator Roil in International Brotherhood Lower Churchill Transmission Construction Employers’ Assn. Inc. v. IBEW,Local 1620 (Tizzard), Re, 2018 CarswellNfld 198, 136 C.L.A.S. 26. [3] The Union and Employer agreed that the Grievor suffered from pain due to osteoarthritis and Crohn’s Disease and that theeffects of the pain constituted a disability, a prohibited ground of discrimination under the meaning of the Human Rights Act, 2010,S.N.L. 2010, c. H-13.1 (the “Act”) at

section 9. The main question before the Arbitrator was whether the employer had met itsacknowledged duty to accommodate the Grievor’s disability without undue hardship. [4] The Union has applied for judicial review of the Arbitrator’s decision, relying on several errors in the Arbitration Award that,it says, rendered the Award unreasonable. First, the Union says that the Arbitrator erred in determining that the risk of impairment fromcannabis use continued for a longer period of time after ingestion than expected by the Grievor’s treating physician.

Second, the Unionargues that the Arbitrator effectively reversed the onus of proof in respect of accommodation and undue hardship by determining thatemploying the Grievor with a risk of impairment, rather than demonstrated impairment, constituted undue hardship. Third, the Unionargues that the Employer’s actions, and the Arbitrator’s decision, perpetuated the stigma and stereotypes associated with cannabis users. Issue [5] The issue for consideration on this judicial review is whether the Arbitrator’s decision that the Employer met its duty toaccommodate the Grievor is reasonable.

The Project, the Parties, the Grievor and his Cannabis Use [6] The Record before the Court demonstrated the factual background as outlined below.

[ 7 ] The workplace that provides the setting for this dispute is one for the construction of towers and related infrastructure for the delivery of electricity from Muskrat Falls in Labrador to, and then within, the island of Newfoundland. This construction project was declared a special project under the Labour Relations Act , R.S.N.L. 1990, c. L-1 .

The Special Project Order designates the Applicant and Respondent as the sole and exclusive bargaining agents for, respectively, the workers and contractors engaged in Project construction. [ 8 ] Safety is an obvious concern in every workplace and the risks to workers, the environment, and the public are generally greater on job sites involving heavy construction and industrial materials, methods, and machinery.

In the realm of industrial relations, safety policies and concerns are often addressed or highlighted in reference to impairment by alcohol or drug use. [ 9 ] The Grievor is a construction worker with over 30 years of experience as a labourer. Unfortunately, he suffers from chronic pain due to Crohn’s disease and to osteoarthritis. These conditions and the resulting pain have affected him for at least 10 years. During that time, he has been treated by his family doctor with numerous modalities, mostly involving different regimes of various pain medications.

As these treatments provided insufficient relief from pain, his family doctor referred him to the Cannabinoid Medical Clinic for assessment of his suitability for cannabinoid therapy. He was assessed at this clinic in April 2016 by Dr. Alia Norman, who prescribed him medical cannabis. He obtained medical cannabis from a licensed provider.

His initial prescription authorized him to purchase 45 grams of dried cannabis per month with a THC level of less than 20%, but later the THC content maximum increased to 22%. [1] [ 10 ] The prescription for cannabis authorized the Grievor to purchase dried marijuana but did not specify the dose or frequency of use. The undisputed evidence from the Grievor before the Arbitrator was that throughout the material time he consumed through vaporization about 1.5 grams of cannabis each evening following work hours. [ 11 ] The Grievor worked as a General Labourer on the Project with H.J.

O’Connell Ltd. from June 30, 2015, until his layoff on September 30, 2016. The Grievor reported his cannabis prescription and use to his direct supervisor, who never reported it to anyone further up the chain of supervision. His work on the Project overlapped with his prescription cannabis use for several months, and he was not involved in any reported safety-related incident during this time. The Grievance [ 12 ] The Collective Agreement for the Project provides for priority hiring for vacant positions to be accorded to members of the Applicant Union. Following his layoff from H.J.

O’Connell, the Union referred the Grievor for two Project positions with Valard Construction, the first as a Utility Worker/Foundation Labourer in November 2016 and the second as an Assembler in February 2017. [ 13 ] The Grievor was advised that he was successful in obtaining the first of the positions with Valard, subject to a Drug and Alcohol/Medical Exam. The practice of the parties under the Collective Agreement provided for this requirement. When he attended for this screening, he disclosed his cannabis prescription and use and was told that he would probably “fail” the drug screening.

It is not clear whether he ever had a drug screen or test. Nevertheless, Valard was informed of his medical cannabis use and prescription. [ 14 ] There followed a series of communications between the parties over the next several months. The details of these communications are not of particular importance on this review except for the following salient points: (

i) The Grievor was not successful in obtaining either the first or second Valard positions. (ii) He was later told that he was not hired for a position with another company, Pennecon Group, on the Project because of his cannabis use and an understanding on the part of Pennecon that no contractor on the Project could employ him in a safety-sensitive position while this use continued. (iii) The Applicant provided Valard with medical opinions from his family physician and from Dr. Norman. (iv) Valard consulted with Dr.

Matthew Burnstein for advice on the issue raised by a worker seeking employment in a safety- sensitive position while using medically prescribed cannabis. (Given both Dr. Norman and Dr. Burnstein testified as to their respective opinions at the Arbitration Hearing, I will summarize their views when discussing the evidence before the Arbitrator.) (

v) Valard refused to hire the Grievor. [ 15 ] On March 24, 2017, the Applicant filed a Grievance alleging that the refusal by Valard to hire the him was based on discrimination contrary to the Collective Agreement and the Act . The Respondent replied on April 28, 2017, and denied the grievance. The Arbitration Award [ 16 ] The parties submitted the Grievance to arbitration in accordance with the Collective Agreement. The hearing before the Arbitrator took ten days and involved evidence from thirteen witnesses and over one hundred exhibits.

Both parties were represented by legal counsel who submitted written briefs supplemented by oral argument, which took a full day. [ 17 ] The evidence before the Arbitrator included the following: (

i) Dr. Alia Norman was qualified by the Arbitrator to provide opinion evidence as a general medical practitioner with some exposure to the use of medical cannabis in treatment of her patients. Dr. Norman testified to the Grievor’s medical condition and the reason for the prescription for cannabis. She stated her opinion that the significant impairing effect on her patients from vaporizing marijuana should dissipate within two hours. She felt that the Grievor should be able to drive and work within four hours of cannabis use. She did say, however, that there could be residual impairment.

She reviewed descriptions of the two Valard jobs in issue and did not feel that his cannabis use would impair his ability to do those jobs. However, she also conceded that she had not visited the job site and was not familiar with the functions required to perform the jobs.

(ii) Dr. Matthew Burnstein, who was retained by the Respondent , testified in the capacity of a family physician who practised as an occupational health consultant. He admitted limited training or experience regarding assessing the possible effects of cannabis use on one’s ability to perform work.

He advised Valard that performing safety-sensitive work following ingestion of cannabis should require a 24-hour waiting period, and that within this 24-hour period there would be a probable impairment. (iii) Gregory Johnstone was qualified by the Arbitrator to give opinion evidence on the pharmacological and toxicity impacts of cannabis on human behavior and performance. He testified that cannabis can reduce sensory perception, self-awareness, vigilance, reaction time, short-term memory and can cause sedation, fatigue, euphoria and distraction.

The timeframe for impairment varies according to numerous factors, but can increase from long-term use due to body loading. Higher percentages of THC (such as those used by the Grievor) can cause impairment of some functions for up to seven days. He cited a Health Canada recommendation that patients taking cannabis ought not work in safety-sensitive jobs until 24 hours following using cannabis. There are no current workplace- impairment measurement tools. (iv) Dr.

Mark Ware was qualified to provide opinion evidence to the Arbitrator in the areas of pain management and the use of cannabis and its effects on human performance. He had limited expertise in assessing the effect of cannabis on workplace performance. He testified that he would defer to the Grievor’s treating physician, Dr. Norman, in assessing his fitness to work. He disagreed with much of Mr. Johnstone’s broader conclusions, noting that each case had to be assessed individually. (

v) Dean Seifried was a Safety Advisor/Safety Supervisor with Valard. He testified to the work functions of the jobs in issue, noting that these functions included working with mechanical equipment. The jobs were often performed in proximity to large construction equipment in congested circumstances and adverse weather and surface conditions. (vi) Tim Brower, a Labour Relations consultant with Valard, testified that Valard did not accept Dr. Norman’s opinion that the Grievor would be able to work safely within a 24-hour period of use of cannabis.

He consulted with the Respondent Association which recommended seeking the advice of Dr. Burnstein. Valard had previously accommodated disabled workers on the Project. [ 18 ] In a 65-page written decision the Arbitrator summarized the evidence and legal positions put to him and denied the Grievance for the following reasons: …The Employer did not place the Grievor in employment at the Project because of the Grievor’s authorized use of medical cannabis as directed by his physician. This use created a risk of the Grievor’s impairment on the jobsite.

The employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer. Standard of Review [ 19 ] This is a review of the decision of a consensual labour arbitrator. Consistent with the overwhelming direction from precedent, the parties agree that review of the Arbitration Award is to be conducted on a standard of reasonableness, as articulated by the Supreme Court of Canada in Dunsmuir v.

New Brunswick v. , 2008 SCC 9 ; Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 ; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 ; and N.L.N.U. v.

Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 . [ 20 ] The reasonableness standard was described in the following manner in the majority decision in Dunsmuir , at paragraph 47 : 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 21 ] As stated by Orsborn, J. in Muskrat Falls Employers’ Assn. Inc. v. Resource Development Trades Council of Newfoundland & Labrador , 2015 NLTD(G) 150 at paragraph 17: “This passage suggests that a reviewing judge is to assess "mostly" the process by which the tribunal reached its decision.

Secondarily, the judge is to assess the outcome itself against what is considered to be a range of "possible acceptable outcomes.” [ 22 ] As Orsborn, J. recognized, the process of review for reasonableness does not proceed in two stages, one to examine the reasons and the other the outcome, but proceeds fluidly, as described by Abella, J. in N.L.N.U. , at paragraph 14 : “ It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” [ 23 ] The authorities encourage the reviewing court not to approach review of the arbitrator’s reasons in an overly rigorous manner, recognizing that even flawed analysis can sometimes support a reasonable outcome.

The deference owed to a labour arbitrator arises from expertise in the

interpretation of Collective Agreements and related legislation, and not from an expectation of superior skills in logic or communication. However, the authorities also recognize that an “egregious error” of reasoning or process will usually result in an outcome that cannot be supported by deference to the arbitrator’s relative expertise. The same can be said of an arbitrator’s decision that answers the wrong issues or is fundamentally based upon irrelevant considerations, because the arbitrator was not “alive to the issue” (See Muskrat Falls, at para. 26 and N.L.N.U.). Application to This Case

[24] The Respondent Employer conceded before the Arbitrator that the Grievor suffered from a disability within the meaning of theAct. The disability resulted from pain caused by Crohn’s disease and osteoarthritis. The Respondent also conceded before the Arbitratorand in this Court that the Grievor was denied employment solely because of his use of cannabis to treat the pain that caused hisdisability, and therefore, the denial of employment amounted to a prima facie case of discrimination on a ground prohibited by theHuman Rights Act,

section 9. The Respondent asserted that the denial of employment was due to a good faith occupational qualification,i.e., the ability to work unimpaired, within the meaning of the Act, section 14(2) and therefore discrimination in denial of employmentwas allowed. The Respondent also conceded that it had a duty to accommodate the Grievor’s disability. The Respondent took theposition before the Arbitrator that it could not accommodate the Grievor as it would constitute undue hardship for it to employ theGrievor when the risk of impairment on the job could not be alleviated by a reliable measure of impairment.

The Applicant maintainedthat the Respondent failed in its duty to accommodate the Grievor’s disability. [25] The parties agreed, and the Arbitrator found, that the legal test to be applied to consideration of the duty to accommodate wasthe “Meiorin” test developed by the Supreme Court of Canada in the course of its decision in British Columbia (Public Service EmployeeRelations Commission) v.

B.C.G.E.U., (SCC), [1999] 3 S.C.R. 3, set out at paragraph 54: 54 … An employer may justify the impugned standard by establishing on the balance of probabilities: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of thatlegitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

To show that the standard isreasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics ofthe claimant without imposing undue hardship upon the employer.. [26] The Arbitrator also took note of the later decision of the Supreme Court of Canada in British Columbia (Superintendent ofMotor Vehicles) v.

British Columbia (Council of Human Rights), (SCC), [1999] 3 S.C.R. 868, at paragraphs. 21 and 22in which Justice McLachlin, as she then was, elaborated on the factor of undue hardship in the third step of the test: 21 … Exclusion is only justifiable where the employer or service provider has made every possible accommodation short of unduehardship. 22 … Failure to accommodate may be established by evidence of arbitrariness in setting the standard, by an unreasonable refusal toprovide individual assessment, or perhaps in some other way.

The ultimate issue is whether the employer or service provider has shownthat it provides accommodation to the point of undue hardship. [27] There was never a question raised by the Respondent as to whether the Grievor could perform the functions involved in theduties of the jobs for which he had been referred by the union. The Respondent, however, refused to employ him because of concernsover whether his use of cannabis would impair his ability to perform those jobs safely.

As the Arbitrator noted, at paragraph 126 of theAward: 126 It is clear that both sides in this issue were struggling with how to manage the impact that the use of medically-authorizedcannabis would have on the ability of the Grievor to work safely as a labourer at the Project. The Union did not denounce the Employer'sinitial inquiries; rather, it attempted to provide a reasonable level of information.

But the level of information communicated ultimatelydid not satisfy the Employer's demands. [28] The worker in this case was never demonstrated to have been impaired in the safe performance of the position he had occupiedat H. J. O’Connell. The case was argued by both sides and determined by the Arbitrator on consideration of the evidence of potentialimpairment or the risk of impairment. [29] Impairment, of course, is a relative term and speaks to the impact of a condition or substance on a function or activity.

TheArbitrator began his consideration of the potential for, or risk of, impairment by analyzing whether the jobs that the Grievor was deniedwere “safety-sensitive” positions. This latter term does not have a meaning outside the labour relations sphere. Safety sensitivity in thatsphere is tied inextricably with the potential effects of drugs or alcohol on job performance. The Arbitrator acknowledges this in hisreference to the IWA-Canada v. Weyerhauser Co, (BC LA), 2004 CarswellBC 2039, 127 L.A.C. (4th) 73.

ArbitratorTaylor’s discussion of the issue of safety sensitivity in that case clearly demonstrates the definition as depending on the interrelationshipof job function, safety and impairment. [30] The Nalcor Drug and Alcohol Standard for the Project was in evidence before the Arbitrator. At paragraph 130 of the Award,he found that Policy was irrelevant to the issue of accommodation as such a policy cannot oust an employer’s obligation to avoiddiscrimination. This is correct.

However, it does not mean that the Policy has no relevance. [31] The Nalcor Drug and Alcohol Standard defined a “Safety Sensitive Position” as “any position in which the individual has a keyand direct role in an operation where performance limitations due to substance use or incapacity due to the adverse effects of drugs oralcohol, could result in a direct and significant risk of injury as a result of an Incident or Near Miss….All Workers working on Site are

considered to be in Safety Sensitive Positions ” [emphasis added]. [ 32 ] Without reference to the Nalcor Policy, the Arbitrator determined that both positions in issue were safety-sensitive positions. His decision in that regard was based on evidence that the positions were ones requiring physical dexterity and mental focus, a deficit in which, due to the nature of the work, equipment and worksite, created hazards for the Grievor and other workers.

The evidence before the Arbitrator, including viva voce from the employer’s safety officer and photographs of the site, supported this conclusion, as did the Nalcor Standard, although the Standard was not referred to by the Arbitrator in respect of this issue. [ 33 ] Once the Arbitrator found that the positions at issue were safety sensitive, then, by definition, the adverse effects of drug and alcohol increased the risk of injury to the Grievor and others. Moreover, the Occupational Health and Safety Regulations , Nlfd. Reg 5/12,

Part V mandated consideration of the question of impairment: 26(2) An employer, supervisor or worker shall not enter or remain on the premises of a workplace or at a job site while his or her ability to perform work responsibilities is impaired by intoxicating substances or another cause that endangers his or her health or safety or that of other workers. [ 34 ] The Union took the position before the Arbitrator that the employer was obligated to hire the Grievor unless the Employer could demonstrate that his ability to work safely would be impaired by his cannabis use.

Before this Court, the Union argued that the Arbitrator erred by failing to recognize that the onus of proving impairment at work lay with the employer. The Arbitrator (see paragraphs 145 - 146 of the Award) considered the question of impairment differently. The Arbitrator determined that once the issue of possible impairment had been raised, then the employer was entitled to demand medical information which demonstrated to the employer’s reasonable satisfaction that the Grievor could perform the job safely.

I do not find that approach unreasonable. [ 35 ] The Union argument regarding the onus of proof on the issue of impairment disregards the fact that the Grievor’s hiring was contingent on his passing a drug test, which he failed to do. [ 36 ] The record does not include a report of a positive formal drug test.

However, in this case the Grievor’s evidence of his use of medical marijuana including its potency and dosage level, coupled with the accepted advice of the technician that a fail would be the inevitable result, was sufficient circumstantial evidence to allow the employer to accept that the factual precondition had been met and that the employer was justified in asking for further evidence before making a hiring decision. I asked both counsel about the absence of a formal drug test. Neither suggested it was an issue, no doubt because of the particular circumstances of this case.

Accordingly, I am quite prepared to proceed on the basis - to repeat, accepted by the parties - that there was, or would have been, a positive drug test. [ 37 ] Once he had failed to pass a drug test, then the parties agreed that the only manner in which the Grievor could have been employed would have been through accommodation.

Accommodation could only have been accomplished through either a demonstration that the Grievor could work in one of the positions in issue, with or without modification, notwithstanding his cannabis use; through another position being made available to him; or through a different regime being adopted for treatment of his disability. [ 38 ] No other jobs were available that were not safety sensitive.

The Arbitrator found, at paragraph 179, that “[a]s there was no evidence called about other possible jobs or functions on the Project into which he might have been able to go without safety being a major concern, I must conclude that there were no positions which he could have filled that would not also pose significant safety concerns.” This conclusion is supported by the evidence and also by the regime created by the Nalcor Standard and the Occupational Health and Safety Regulations. [ 39 ] In the manner in which the case was presented, and based on the evidence, the Arbitrator found that other medical or therapy modalities were not available.

The Applicant relied in argument on alternative treatments suggested by Dr. Burnstein that had never been tried. However, the Arbitrator found at paragraph 150, “… the Grievor and his attending physicians had already exhausted other conventional medication routes for the reduction of his osteoarthritic pain. His unique combination of osteoarthritis and Crohn's disease made conventional medications either ineffective or they aggravated his stomach problems. He had trialed many alternative therapies and medications.

I do not dispute that his last-resort decision to use cannabis was a worthwhile route for him and his physicians to pursue. Accommodation could not reasonably be found in this case by changing the Grievor's medication.” There was evidence from the Grievor’s physicians, Drs. Doody and Norman, to support the reasonableness of this finding by the Arbitrator, notwithstanding that there was also evidence from Dr.

Burnstein that other treatment modalities could have been attempted. [ 40 ] In this case, therefore, the only possible outcomes of the hiring process would have been that the employer could have refused to employ the Grievor or hired him notwithstanding the risk presented by employing him in a safety-sensitive position while possibly impaired by his medically authorized use of cannabis. [ 41 ] The Arbitrator analyzed the employer’s decision not to hire as a question of undue hardship in the accommodation process.

He adverted to the outcomes in previous cases in which there had been findings of failure to accommodate where Employer s had taken job action without considering alternatives available for accommodation of medical marijuana use even in safety-sensitive work environments (such as IBEW, Local 1620 v. Lower Churchill Transmission Construction Employers’ Assn. Inc. , 2016 NLTD(G) 192 and Calgary (City) v. CUPE, Local 37 (Hanmore) Re , 2015 CarswellAlta 1834, 261 L.A.C. (4th) 1 ). [ 42 ] The Arbitrator considered the expert evidence adduced by both Union and Employer, as summarized earlier in this decision.

He properly considered the issues before him on the basis of the evidence, which had been adduced in this case noting that the evidence may have been different in those cases cited where the outcomes were different.

He concluded from the evidence that the use of marijuana can impair the ability of a worker to function safely in a safety-sensitive workplace, that this impairment can last up to 24 hours after use, that the impairing effects may not be known to the user, and that there was no available means or method for accurately testing impairment from cannabis use in the workplace. [ 43 ] After having stated those conclusions from the evidence, the Arbitrator found, at paragraph 181: 181 The safety hazard that would be introduced into the workplace here by residual impairment arising from the Grievor's daily

evening use of cannabis products could not be ameliorated by remedial or monitoring processes. Consequently, undue hardship, in terms of unacceptable increased safety risk, would result to the Employer if it put the Grievor to work. As previously stated, if the Employer cannot measure impairment, it cannot manage risk. [ 44 ] I find that the Arbitrator accurately identified the issue before him in this case as a question of the Employer’s duty to accommodate use of medical cannabis by a worker in a safety sensitive position.

He found that the duty to accommodate did not extend to a requirement that the Employer accept a risk resulting from the possibility of impairment.

He concluded that the evidence of possible impairment adduced by the Employer (and not contradicted by the Grievor’s treating physician who conceded the possibility of residual impairment beyond the initial four hours from use) met its onus to demonstrate undue hardship which displaced its acknowledged duty to accommodate. [ 45 ] There was evidence which supported the Arbitrator’s conclusions and a clear line of analysis, which led from the evidence to the ultimate decision.

The Applicant’s argument that the Award was based on stigma or stereotype attaching to cannabis users is therefore without sufficient foundation to support a finding that the Arbitrator’s Award was unreasonable. [ 46 ] The Arbitrator based his findings on resolution of the evidence before him, and his decision was within the range of reasonable outcomes. [ 47 ] The Application is dismissed, with costs, to be taxed on the basis of Column 3 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D , to the Respondent . _____________________________ Daniel M. Boone Justice