The Grass Isnt Always The Grass Isn t Always Greener: Legal Issues - PowerPoint PPT Presentation

The Grass Isn’t Always The Grass Isn t Always Greener: Legal Issues for Greener: Legal Issues for Insurers of Vehicles Post Legalization Jim Tomlinson Partner

A New Legislative Landscape Federal legislation passed on June 21, 2018: Possession: Cannabis Act SC 2018 c 16 Possession: Cannabis Act , SC 2018, c 16. • • Impaired driving and new police powers: Bill C-46 (the • Impaired Driving Act ), SC 2018, c 21. Consequential amendments to other federal statutes Consequential amendments to other federal statutes • Provincial legislation has been more piecemeal: Possession, transport and youths: Cannabis Control Act, • 2017 , SO 2017, c 26, Sch 1. Commercial sale: Cannabis Licence Act, 2018 , SO 2018, c • 12, Sch 2. Amendments to the Smoke-Free Ontario Act, 2017 , SO • 2017, c 26, Sch 3.

It’s Still Illegal to Drive High The former impaired driving provisions in the Criminal Code , RSC 1985, c C-46 were completely repealed and replaced in the legalization process. Section 320.14(1) establishes a new, wider offence that criminalizes impaired driving while creating measurable blood drug limits for impaired driving while creating measurable blood drug limits for cannabis: • A criminal offence is committed by anyone who operates a “conveyance” while they are, inter alia : conveyance while they are, inter alia : (a) Impaired by drugs and/or alcohol; or o (b) Have a blood drug concentration exceeding the amount prescribed by o regulation. • “Conveyance” is defined widely to include, among other things, motor vehicles, planes, boats and trains.

But Illegality Does Not Shield Insurers In the automobile context, a third party’s right to recovery is i not t prejudiced j di d b by a d i driver’s ’ intoxication: • Insurance Act , RSO 1990, c I.8, s258(4)(c). I A t RSO 1990 I 8 258(4)( ) In the marine context, it will depend on the wording of any exclusions in the policy: di f l i i th li • See e.g. Heffernan Estate v Lloyd’s Canada , 2015 ONSC 853 2015 ONSC 853.

Risks Relating to Intoxication Scenario 1: A mechanic intoxicated by cannabis works on a commercial vehicle Due to his intoxication he improperly commercial vehicle. Due to his intoxication, he improperly fastens a wheel to the vehicle. During operation, the wheel falls off, causing a fatality. Scenario 2: A commercial marine vessel pulls into port. During mooring, a dockworker, who smoked cannabis before his shift forgot to tend to one of the mooring lines before his shift, forgot to tend to one of the mooring lines. The boat drifts into another vessel, causing hull damage.

The Cost of Legalization As cannabis becomes easier to obtain and more socially acceptable we can expect marijuana-related transportation acceptable, we can expect marijuana related transportation losses to increase. This is particularly true for employers whose employees This is particularly true for employers whose employees operate work vehicles: • Highway Traffic Act , RSO 1990, c H.8, s192(2). Risk management professionals should be alert to issues and strategies that can minimize both the probability and quantum of marijuana-related transportation losses.

What’s the Legal Context? Consider the case of a painter, driving a work van after smoking cannabis: he doesn’t notice that a child is crossing smoking cannabis: he doesn t notice that a child is crossing the street until it’s too late. A claimant would be required to show that the defendant A claimant would be required to show that the defendant failed to take reasonable care to avoid a loss: • An assessment of what amounts to reasonable care would depend depend on on prior prior case case law law, reasonable reasonable prudence prudence and and a a comparative analysis of industry practices. • Exception: In motor vehicle cases involving an employee negligently driving an employer’s vehicle proof of the employer’s negligently driving an employer s vehicle, proof of the employer s ownership is sufficient proof of the owner’s liability ( Highway Traffic Act , RSO 1990, c H.8, s192(2)).

Inaction Is not a Strategy In the painter’s work van example, risk is created t d b by th the inaction i ti of f a business b i i in combatting impaired driving just as much as it is by the driver’s choice to drive impaired is by the driver s choice to drive impaired. Risk management professionals can play a pivotal role in controlling an insurer’s exposure to marijuana-related losses by driving changes on the institutional level of a business. th i tit ti l l l f b i

Between a Rock and a Hard Place Cannabis is an intoxicant that increases the risk of vehicle- related property damage and personal injury related property damage and personal injury. However, employers are subject to countervailing duties to accommodate medicinal users of cannabis to the point of accommodate medicinal users of cannabis to the point of undue hardship. Effective risk management involves protecting against Effective risk management involves protecting against cannabis-related transportation losses without triggering workplace law issues.

Sources Informing the Standard of Care 1. Legislation: Particularly touching on the consumption and storage of cannabis Particularly touching on the consumption and storage of cannabis, • • as well as an employer’s duty to accommodate medicinal usage. 2. Case law: Especially cases involving alcohol. • 3. Industry guidelines and best practices. 4. A comparative analysis between entities similar to the defendant: E.g. how do the defendant’s cannabis policies compare to ABC • Trucking or XYZ Haulage? Trucking or XYZ Haulage?

Legislation: Consumption and Storage Drivers and passengers of motor vehicles and boats forbidden from consuming cannabis: boats forbidden from consuming cannabis: • Drivers: Criminal Code , RSC 1985, c C-46, s320.14(1); Smoke-Free Ontario Act, 2017 , SO 2017, ( ); , , , c 26 Sch 3, s17.1(a) [Smoke-Free Ontario Act ] . • Passengers: Smoke-Free Ontario Act , s17.1(b). Marijuana must be transported in original, unopened packaging or not readily-accessible to anyone in motor vehicle or boat: i t hi l b t • Cannabis Control Act , SO 2017, c 26, Sch 1, s12.

Legislation: Workplace Consumption In a provincially-regulated workplace (most workplaces), cannabis may not be consumed in any place covered by a cannabis may not be consumed in any place covered by a roof and where the public is permitted, including a vehicle: • Smoke-Free Ontario Act, 2017 , SO 2017, c 26, Sch 3 s12. In a federally-regulated workplace (e.g. interprovincial trucking commercial boating and ports) cannabis may only trucking, commercial boating and ports), cannabis may only be consumed in a “designated smoking area”: • Non-smokers’ Health Act , RSC 1985, c 15 (4 th Supp), s4(1).

Legislation: Human Rights Issues Cannabis continues to be used for medicinal purposes. Despite the need to adhere to legislation regulating the consumption and transport of cannabis, employers must accommodate accommodate medicinal medicinal use use to to the the point point of of undue undue hardship: • Human Rights Code , RSO 1990, c H.19, s5(1) • Canadian Human Rights Act , RSC 1985, c H.6, s7. C di H Ri ht A t RSC 1985 H 6 7 A “zero tolerance” policy might be problematic in some industries and/or some employee roles. p y

Jacobsen v Nike Canada (1996), 19 BCLR (3d) 63 (SupCt) (SupCt) Facts: Jacobsen’s employer, Nike, sent him to set up a trade show and required him to use his own car to get to work, as he was transporting materials. During the day, Nike supplied alcohol. Jacobsen and others were told not to get drunk, but no other restrictions were placed on the drinking. Although Jacobsen drank more at a bar after leaving work, the Court held Nike liable for the injuries he sustained while driving home. Nike fell short of the standard of care by introducing drinking and driving into fell short of the standard of care by introducing drinking and driving into the workplace, failing to monitor consumption and because it ought to have known of Jacobsen’s inebriation.

John v Flynn (2001), 54 OR (3d) 774 (CA) Facts: Flynn was working the night shift at a forge. During his breaks, he secretly drank beers in his private vehicle. His employer was aware of his drinking problem, but not that he was drinking during the night in question. When Flynn left work, he continued drinking at a bar and got into an accident, injuring John. The Court refused to hold Flynn’s employer liable. The employer did not have a general duty to ensure that all employees were safe to drive home, even though it knew of Flynn’s drinking problem, as it did not home, even though it knew of Flynn s drinking problem, as it did not supply the alcohol and did not condone the drinking.