The B.C. Human Rights Tribunal has permitted a disability discrimination complaint to move forward after a fly-in/fly-out worker on the LNG Canada Project in Kitimat was found with marijuana in his room despite a strict no-cannabis policy and was subsequently banned from the lodge where he was staying.
The tribunal’s decision allows the case against Civeo Corporation and JGC Fluor BC LNG JV (JFJV) to proceed to a full hearing.
M.M., who worked for BJM, a subcontractor on the project, alleges that the lodge ban and subsequent actions by Civeo and JFJV discriminated against him based on his disabilities of chronic pain and insomnia. To manage his conditions, M.M. used medical cannabis, holding a prescription and Health Canada authorization for up to 14 grams per day.
Zero tolerance policy
Civeo operates the Sitka Lodge in Kitimat, providing accommodation for workers on the LNG Canada Project. The lodge enforces a strict zero-tolerance policy on cannabis, stating: “Effective October 17, 2018 this Lodge is ‘marijuana free’. Marijuana and/or marijuana products are not permitted anywhere on site including in guest rooms, in vehicles or common areas and the possession, use or sale of marijuana products is strictly prohibited.”
On September 9, 2020, during a canine search of rooms at the lodge, Civeo personnel discovered a vape pen containing a small amount of cannabis oil in M.M.’s room. M.M. was present during the search and disclosed his medical authorization, offering to provide proof of his prescription. He was instructed to return to work and later provided his Health Canada registration to his employer.
Lodge ban
Despite his disclosure, on October 1, 2020, Civeo issued a lodge ban, suspending M.M.’s accommodation privileges indefinitely in all Civeo lodges. The ban letter cited violation of lodge rules, including the zero-tolerance policy on illegal drugs and the prohibition of marijuana products. “As a result of the above incident, your lodge privileges are suspended indefinitely in all Civeo Lodges,” the letter stated.
As a consequence of the lodge ban, BJM informed M.M. that he could not return to work until the ban was lifted or he arranged his own accommodations, which would be at his personal expense. The employer also required M.M. to undergo an independent medical examination (IME) before returning to work, citing inconsistencies in medical documentation regarding his cannabis use.
Additionally, JFJV, responsible for issuing security badges and providing accommodation services at the Cedar Valley Lodge, placed M.M. on a “no-access” list following the lodge ban. This restricted his access to the project site and their housing services, further impacting his employment opportunities.
M.M. filed a human rights complaint alleging that the actions of Civeo and JFJV discriminated against him based on his disabilities in respect of both his employment and services customarily available to the public, contrary to sections 8 and 13 of the Human Rights Code.
The respondents sought dismissal of the complaint under section 27(1)(c) of the Code, arguing it had no reasonable prospect of success. They contended that:
- M.M. lacked sufficient medical evidence to prove he had disabilities connected to his cannabis use.
- They were not his employer and therefore did not discriminate regarding his employment.
- Their services were not customarily available to the public and thus not subject to section 8 of the Code.
- Civeo argued it was certain to justify the lodge ban as only the employer could have accommodated M.M.
Tribunal Member Devyn Cousineau denied the application to dismiss, stating that M.M. had provided sufficient evidence to proceed. “In my view, M.M. has taken his allegations under ss. 13 and 8 out of a realm of conjecture,” Cousineau wrote. She noted that M.M. had submitted medical documents indicating chronic pain and insomnia resulting from a 2011 motor vehicle accident, and that his medical prescription for cannabis supported his claim of disability.
Addressing the connection to employment, the tribunal determined that both Civeo and JFJV’s actions could adversely impact M.M.’s employment, despite not being his direct employers. “There is evidence before me that… Civeo was an integral part of M.M.’s workplace, with the power to interfere with his work environment or performance of work,” Cousineau stated. Regarding JFJV, she noted that it controlled access to the project site and accommodations, and its “no-access” list could significantly affect M.M.’s employment prospects.
On whether the respondents provided services customarily available to the public, the tribunal disagreed with their assertion that their services were purely private. Cousineau emphasized that “once the workers are eligible to stay at the lodge, they become the ‘public’ served by Civeo.” She concluded that M.M. has a reasonable prospect of proving that both respondents provide services within the meaning of the Code, and that their actions adversely impacted him in respect of those services.
The tribunal also found a sufficient connection between M.M.’s disabilities and the adverse impacts. The possession of cannabis was directly related to his medical treatment for chronic pain and insomnia. “At a hearing, this may be sufficient to prove a connection between his disabilities and the lodge ban and access restriction,” Cousineau noted.
Regarding Civeo’s argument that it could justify the lodge ban, the tribunal was not persuaded. Cousineau pointed out that Civeo did not address the first two elements of the justification analysis—valid purpose and good faith belief—and that it was unclear why Civeo could not have explored accommodation options with M.M. “Considering all the material before me, I am not reasonably certain that Civeo will justify the lodge ban at a hearing,” she stated.
Cousineau concluded by stating, “At this interim stage of the Tribunal’s process, my decision is simply that M.M.’s allegations warrant a hearing so that the Tribunal can make a final determination on the merits of the complaint.” The complaint will proceed to a hearing, where the tribunal will make a final determination.
For more information, see MacKay v. Civeo Corporation and another, 2024 BCHRT 271 (CanLII).
