casual/oncall

There Was Pot in My Pocket?: Grievor’s Forgetfulness
Results in His Dismissal for Possessing Marijuana on
the Job Being Overturned
— Edward Noble. © LexisNexis Canada Inc. This article was prepared for an upcoming issue of
Labour Notes, an employment and labour newsletter published twice monthly by LexisNexis
Canada and which accompanies the Canadian Labour Law Reporter.
In a December 2016 decision, a Newfoundland and Labrador court was faced with a
judicial review application brought by a union on behalf of an employee who had been
dismissed because he possessed a small quantity of marijuana in his pocket while on
company business, in violation of corporate policy. There was agreement between the
parties that the grievor was in possession of the marijuana, and subsequent urinalysis
confirmed the presence of a detectable amount of the drug in the grievor’s system. The
curious wrinkle in this case arose because, at arbitration, a factual finding was made
that the grievor was unaware of the presence of the marijuana in his pocket at the time
it was discovered. The grievor had simply forgotten that it was in his jeans. Despite this
finding, the arbitrator determined that the grievor’s possession of the contraband was in
violation of the corporate policy and upheld his dismissal.
In allowing the union’s application for judicial review, the Court reached the interesting
conclusion that, to be in violation of the company’s policy, more than simple possession
of marijuana was required—a necessary element was the intent to possess the drug
while performing company business. In effect, the Court determined that the grievor was
in possession of marijuana, but because it was demonstrated that he was unaware that
he was doing so while engaged in company business, his termination could not be
sustained.
Background
The grievor, Noseworthy, worked for Magna Services Limited (“Magna”) on a casual/oncall
basis at offshore installations. He was represented by the Communications, Energy
and Paperworkers Union (UNIFOR, Local 2121) (the “union”). Magna was a member of
the Terra Nova Employers’ Organization, which had the authority to administer the
relevant collective agreement.
Like many offshore employers, Magna had a strict zero tolerance policy for alcohol and
drugs due to the extremely hazardous nature of the work environment. The relevant
portion of Magna’s policy provided:

The use, possession or distribution of an illegal drug, or drug
paraphernalia by an employee while on company facility or while
performing company business is strictly prohibited. The presence in any
detectable amount of an illegal drug on or in an employee while
performing company business or while on a company facility is strictly
prohibited.
In January 2014, Noseworthy was contacted by Magna and instructed to report for
work. He went to a helicopter facility to be transported to an offshore location. On his
way through a security scanner, a piece of tinfoil was discovered. This tinfoil, described
as “smaller than a pencil eraser”, was found to contain a small quantity of marijuana.
The Royal Newfoundland Constabulary was contacted; however, owing to the small
quantity of drugs at issue, the Constabulary declined to press charges. While at the
heliport, a sample of Noseworthy’s urine was taken. That sample was initially negative,
but was subsequently shown to contain a detectable amount of marijuana.
On March 26, 2014, Noseworthy’s employment with Magna was terminated. The
termination letter indicated that Noseworthy’s possession of marijuana while on
company business was a direct violation of Magna’s policy. It should be noted that, as
the Court would later point out, while the presence of a detectable amount of marijuana
in Noseworthy’s system could potentially have amounted to a violation of its policy,
Magna relied on Noseworthy’s possession as the grounds for his dismissal.
The union grieved Noseworthy’s termination. A sole arbitrator heard the grievance and,
on January 21, 2016, upheld the termination. The union brought an application for
judicial review. The union sought an order quashing the arbitrator’s decision or, failing
that, a substitution of an unpaid three-month suspension in place of termination.
The Arbitrator’s Decision
According to the sole arbitrator, “[i]n order to be caught by this policy one must be
shown to have been in possession of the prohibited substance”. The arbitrator relied on
the legal requirements for possession, as set out in another Newfoundland and
Labrador arbitration decision involving an employee caught with marijuana, Resource
Development Trades Council of Newfoundland & Labrador v. Voisey’s Bay Employer’s
Assn. Inc., [2004] N.L.L.A.A. No. 17, 134 L.A.C. (4 th ) 323 (“RDC”). In RDC, the arbitrator
set out the legal requirements for possession:
The question to be answered was whether there has been proof of
physical possession and whether from all the circumstances of the case, I
can conclude that there was proof of knowledge on her part of it's [sic]
presence.
The arbitrator found that Noseworthy had the requisite actus reus by virtue of the fact
that he had physical possession of marijuana while on company business. That,
coupled with the finding that Noseworthy had “used the substance previously, possibly
on a hunting expedition a short time ago and had simply forgotten to take it out of his
pocket”, resulted in the arbitrator concluding that Noseworthy was in possession of

marijuana in violation of the policy, and that Magna’s termination of his employment was
justified.
The Judicial Review
On December 7, 2016, the union’s application for juridical review was allowed in
Communications, Energy and Paperworkers Union (UNIFOR, Local 2121) v. Terra
Nova Employers' Organization, [2016] N.J. No. 413, 2016 NLTD(G) 194. In that
decision, Justice Burrage determined that the arbitrator erred by conflating the test for
simple possession with the test for possession in violation of the Magna policy.
According to Justice Burrage, the actus reus and mens rea for simple possession
required only that Noseworthy had placed the substance in his jeans—which the
arbitrator was satisfied that he did. However, the focus of Magna’s policy is narrower
than simple possession. While the actus reus was the same, a violation of the Magna
policy required a different mens rea—namely an awareness on the part of Noseworthy
that he was in possession of marijuana while in a “company facility” or “while performing
company business”. According to the Court:
The mens rea in this instance is not simply the intent to possess the drug,
but the intent to do so while performing company business. As for this
latter essential component, the arbitrator concluded that Mr. Noseworthy
did not know the marijuana was in his pocket as he was performing
company business …
…
The mental element to establish possession in contravention of the Policy
is thus missing.
This was so because, at an earlier point in the arbitration decision, it had been found as
a fact that Noseworthy, a credible witness, was oblivious to the fact that there was still
marijuana in his pocket when he arrived at the heliport. There was no dispute from
Noseworthy that it was in his pocket, but he claimed, and the arbitrator accepted, that
he had forgotten about it prior to arriving at the facility. Justice Burrage opined that,
while forgetfulness is not a defence to simple possession, simple possession is not
proscribed by Magna’s policy. He wrote:
I am unable to conclude that the arbitrator’s decision that Mr. Noseworthy
was “in possession” in violation of the Policy meets the standard of
reasonableness. The arbitrator’s conclusion that Mr. Noseworthy did not
know the marijuana was in his pocket (and thus did not have the requisite
mens rea for possession in violation of the Policy) could only have led to
one result, namely that the Policy had not been violated. Therefore, the
arbitrator’s conclusion that Mr. Noseworthy was nevertheless in violation
of the Policy does not fall within the range of reasonable outcomes
available.
Justice Burrage determined that, rather than send the matter back to an arbitrator for
reconsideration, the appropriate remedy was to set aside the arbitration decision and

allow the union’s grievance. Given the arbitrator’s finding that Noseworthy lacked the
requisite mens rea for a violation of the policy, there was only one possible result.
In obiter, it was determined that the arbitrator’s decision to uphold Noseworthy’s
termination would have been reasonable had there been possession in violation of
Magna’s policy.
Floodgates Argument
Justice Burrage addressed the Terra Nova Employers’ Organization’s argument that a
decision in favour of Noseworthy and the union in this matter could open the floodgates
to the flow of illegal drugs to offshore installations. The Court reasoned that, though an
employee will always be able to assert that he or she was unaware of the presence of
illegal drugs on his or her person, each case will always be decided on its own merits,
including an assessment of the grievor’s credibility. Knowledge of possession could still
be inferred, on the balance of probability, to an employee who stridently contends that
the presence of drugs was unknown to them, as in fact happened in RDC.
Conclusion
On its face, the result in Communications, Energy and Paperworkers Union (UNIFOR,
Local 2121), v. Terra Nova Employers' Organization might appear unlikely. After all, it
was accepted that the grievor was in possession of a banned substance while engaged
in company business—an apparent violation of the company’s drug and alcohol policy.
However, Justice Burrage’s analysis demonstrates the importance of the mental
element in cases of this sort.
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