Arbitrator finds employer had 'clear, convincing and cogent' evidence of substance use during work hours
An Ontario arbitrator has reinstated a Toronto steel worker fired for smoking cannabis on his lunch break, but converted the dismissal into a three‑month unpaid suspension, stressing the need to balance safety in safety‑sensitive workplaces with proportional discipline.
In MSC Toronto o/a Continuous Colour Coat Limited v United Steelworkers Local 3950‑65, Sole Arbitrator Rishi Bandhu found that console operator Joseph Sutton did smoke cannabis off‑site during his lunch break on July 8, 2025, and then returned to work under its influence, in breach of the company’s rules. He also found Sutton engaged in “significant insolent behaviour” toward a senior manager when confronted.
However, Bandhu ruled on Jan. 30, 2026, that termination was excessive in the circumstances and ordered Sutton reinstated with a three‑month suspension but no back pay.
MSC operates a coil‑coated steel facility in Rexdale with continuous galvanizing and paint lines, which Bandhu described as a safety‑sensitive environment. Sutton worked as a “Utility Operator” on the paint line, including operating a console that controls line speed, tension and cuts.
Plant Rule No. 5 provides that “reporting to work under the influence of alcohol or other intoxicants…may lead to disciplinary action up to and including termination.” The employer also had a memorandum prohibiting cannabis use and possession in the workplace and emphasizing the need to work without impairment.
Cannabis laws have given Canadian employers a headache.
Evidence of cannabis use
On July 8, 2025, Quality Manager Mohammed Mazaheri encountered Sutton on Martin Grove Road during the lunch break and testified he saw Sutton smoking what appeared to be a hand‑rolled joint and smelled cannabis as he passed. In an email the next day, Mazaheri wrote that he “distinctly smelled the characteristic odour of cannabis, leaving no doubt about the nature of the substance being consumed.”
Sutton admitted leaving the plant to walk and to smoking, but insisted he had smoked a Player’s Light cigarette and denied using cannabis. He returned to work and there were no reported safety incidents or performance problems for the rest of the shift.
Bandhu was not persuaded by the visual description of a “hand‑rolled joint” alone, but placed significant weight on Mazaheri’s evidence about smell, calling the odour of cannabis “distinct and pungent” and “unmistakable” for those familiar with it. He concluded, on a balance of probabilities, that Sutton had smoked cannabis between 12:30 p.m. and 12:41 p.m. and later resumed his console duties “within a window of time that he was under the influence of cannabis.”
Union challenge and arbitrator’s findings
The union argued MSC had not proven impairment and had failed to conduct an adequate investigation, including by not interviewing another worker who returned to the plant alongside Sutton. It also said there was no cannabis‑specific impairment policy.
Bandhu rejected those arguments, finding the general intoxicants rule applied and that the employer had met its onus with “clear, convincing and cogent” evidence of use during work hours. He held that cannabis is plainly an “intoxicant” for the purposes of Plant Rule 5, and that on‑duty use could attract serious discipline even in the absence of testing or a specific cannabis policy.
At a meeting on July 9, 2025 — after Sutton was advised his employment was suspended pending investigation — he repeatedly called Operations Manager Mark Hendren a “fucking joker” and then a “fucking joke”. Bandhu described this as “significant insolent behaviour towards a high‑ranking management employee” and said Sutton’s annoyance at being accused of cannabis use was “plainly, not an excuse.”
The arbitrator treated the insolence as a separate ground of misconduct, in addition to the cannabis use.
Suspension rather than termination
In weighing the penalty, Bandhu cited aggravating factors including the safety‑sensitive nature of the plant and duties, Sutton’s knowing breach of Plant Rule 5, his dishonesty about cannabis use, his highly disrespectful conduct toward management, and two prior disciplines earlier in 2025.
Mitigating factors included nine years of largely discipline‑free service and the absence of any evidence of actual impairment, diminished productivity or safety incidents on the day in question.
“The policy effectively contemplates a range of disciplinary consequences” for reporting under the influence, Bandhu wrote, adding that “in the absence of specific evidence of impairment, I cannot conclude that discharge is warranted in the circumstances.”
Bandhu substituted a three‑month suspension and ordered Sutton reinstated immediately, but declined to award retroactive wages, expressing hope that Sutton now understands “the importance of not reporting to work under the influence of cannabis (or any other intoxicant) and of demonstrating respect and professionalism towards his co‑workers and supervisors.”
Cannabis was legalized for recreational use in Canada on October 17, 2018, when the Cannabis Act (Bill C-45) took effect.
The percentage of employees testing positive for marijuana after a workplace accident reached a 25-year high in 2022, with the positivity rate increasing by over 200% within a decade.
