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Employer liability a concern with cannabis legislation – lawyer

The legalization of recreational cannabis is on the horizon – set for July 1, 2018 – but some legislation introduced related to workplace safety has one local lawyer seeing red, or perhaps green, flags.
A cannabis retail giant’s move to shut down a local pot vendor has been tossed out by Banff’s development appeal board amid arguments the case was simply about eliminating a competitor.

The legalization of recreational cannabis is on the horizon – set for July 1, 2018 – but some legislation introduced related to workplace safety has one local lawyer seeing red, or perhaps green, flags.

Janet Nystedt, a Canmore-based lawyer and business owner, presented an analysis of the cannabis framework and legislation introduced so far by the federal and provincial governments at a recent Chamber of Commerce Learn at Lunch event.

Nystedt said employers, corporate officers and business owners should be paying close attention to the changes and what implications they have for workplaces and liability for what happens within them.

“One of the very serious workplace ramifications for probably a lot of people in the room is director liability,” she said, adding the Cannabis Act broadens the potential liability faced by corporate directors and officers to being a strict liability standard.

“This gives me a whole lot of trouble. There is no due diligence defence, which is unlike normal occupational health and safety related liability. Normally, there is an allowance; we know we cannot police everything that happens in our workplaces, we just can't do it.

“We can set expectations, we can set policies and we can set clear guidelines and rules, but if someone breaks the rule, then as long as we have the building blocks in place, the officer of the corporation in charge has a due diligence defence.”

The Cannabis Act, however, sets out that if a corporation commits an offence, under section 44 of the act, the directors and officers of the corporation can be held liable for the offence, even if they are not prosecuted.

“That is a huge red flag to me from a lawyer's perspective,” said Nystedt, adding not all aspects of how this applies are clear at the moment. “Does this extend outside the people you have control over? Does it apply to your customers? That I do not know the answer to, but events, non-profits, charitable organizations, private industry, the public service, all of it employs directors and officers and your liability is the same.

“I don't think that is something well thought out or publicized, but it is certainly something to keep your eye on.”

Federal legislation to legalize cannabis passed in the House of Commons recently and has moved on to the Senate. The goals of the legislation are to prevent young people from accessing cannabis; protect public health and public safety by establishing product quality requirements; deter criminal activity and reduce the burden on the justice system in relation to cannabis.

Provincial legislation was introduced in November as well, setting out the legal age, possession limits and how online and retail sales would be handled in Alberta.

While possessing cannabis would no longer be criminal, the legislation creates a highly regulated framework for how it is produced, who is producing it and how it is distributed and sold. It sets out that current medical marijuana licence holders – those licenced to have clinics and distribute cannabis – would be licenced under the new regulatory regime.

Cannabis may be legal to use once the new laws are enacted, but that does not change the fact it is a substance that causes impairment.

As far as regulations around where it can be consumed and how, currently proposed provincial rules for Alberta set the same restrictions on smoking or vaping cannabis as there exists for smoking tobacco. That means if there is no smoking or vaping allowed, that includes cannabis.

In terms of workplaces, Nystedt said she is recommending her clients look at it through the same lens as tobacco and alcohol.

“This is a licencing change,” she said. “It is akin to alcohol and smoking and when we are looking at workplace policies that is the lens I am recommending my clients look at this through.”

For Nystedt and workplace safety considerations, that means employers should be looking at their policies with relation to impairment in the workplace and making it clear to employees what the expectations are.

“All of those same rules apply if impairment is a problem and there is no tolerance for that in the workplace,” she said. “Just because it is legal does not mean you have to allow it in your workplace.”

Questions around social host liability, staff events like Christmas parties, and staff accommodation rules were all put forward by those attending the luncheon. Nystedt said as the process moves toward July 1, more of these unanswered questions and implications will be flushed out.

“There is still a social stigma (around cannabis) that we are not going to get over overnight,” she said. “How does that look in the workplace and how do you respond?”

Marc LeBlanc with the Canadian Cannabis Compassion Community is concerned about that stigma and ‘cannaphobia' that could affect medical and recreational users.

His organization not only represents medicinal cannabis patients and their rights, but also those who would choose to use it recreationally. He said it is important to note that even though those two groups are different, the cannabis they consume is the same product.

This community of people, as well as the emerging industry to meet their needs, are an important part of this conversation LeBlanc thinks are being left out. He said he would like local governments to consult with grassroots organizations like his to gain insight into this emerging community and be better prepared to involve them in decisions and embrace them as part of the overall community.

He said the federal government's delay in addressing regulations around edibles is a violation of the rights of cannabis users. He said other levels of government have an obligation and moral responsibility to respect these rights by allowing cafés, lounges and edibles.

LeBlanc is concerned about the commodification of cannabis by the private sector and would prefer to see grassroots providers given preference over companies like Canna Clinic and 420 Clinic.

“There is a tremendous opportunity (non-financial) to gain and share knowledge within our community and thusly benefit the entire community by having patients, or even recreational consumers, achieving their goals of enhancing their quality of life by choosing an alternative, which is less harmful than pharmaceuticals or alcohol or tobacco,” he wrote in an email to the Outlook. “Hopefully one day, without being subject to judgement and persecuted by negative stigma.”


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