Mere Smell of Marijuana was not Enough: Employee was Entitled to Refuse Drug Test, says Court

An employee was entitled to refuse to submit to a reasonable-suspicion drug test where a supervisor smelled marijuana in the employee’s truck but had no other evidence of drug use or impairment, a Nova Scotia judge has held.

The employer was a labourer with the Halifax Streets Department.  When the supervisor thought that he smelled marijuana in the employee’s truck, he asked him to submit to a drug test.  The employee refused, saying “it is none of your business what I do when I am not here”, and said that he was a recreational user of marijuana and that the test would be positive anyway.

The employee was referred to a Substance Abuse Professional but refused to answer questions about his off-duty drug use.  The City fired the employee for his “lack of cooperation and direct violation of the HRM Substance Abuse Prevention Policy.”

The employee grieved the termination, and an arbitrator reinstated him.  The City asked the court to overturn the arbitrator’s decision. 

The court noted that although the City had a legal obligation to protect employees’ safety under the Occupational Health and Safety Act, the arbitrator reasonably concluded that the evidence suggesting that the employee had used or been impaired by drugs on the job was very weak.   In the circumstances, the employee’s refusal to submit to a drug test and to further assessment was reasonable.

In short, the fact that the City had “safety concerns” about the employee did not permit the City to dismiss him where the City did not have just cause.

Halifax (Regional Municipality) v. Canadian Union of Public Employees, Local 108, 2013 NSSC 164 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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