GSB# 2023-02675

Union# G-072-23-SOE

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Reid)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

Anne Cumming and Jordyn Gooden Ursel Phillips Fellows Hopkinson LLP Co-Counsel

FOR THE EMPLOYER

Bonnea Channe and Brendan Egan Filion Wakely Thorup Angeletti LLP Co-Counsel

HEARING

November 13, 2024; October 16, 31, November 7, 14, 2025

Decision

I. Introduction

1The Grievor was terminated from his employment with Metrolinx (the Employer) on November 8, 2023. The Employer alleges that the Grievor was in possession of cannabis while at work and that he also used cannabis at work. The Employer submits that the Grievor’s misconduct constitutes just cause for termination.

2The Union submits that the Employer has not established that the Grievor was in possession of cannabis or that he used cannabis while at work. As such, the Union takes the position that the Employer did not have just cause to terminate the Grievor.

3The central issue in this grievance is whether the Employer had just cause to terminate the Grievor. That issue turns, in large part, on whether the evidence in this case establishes on a balance of probabilities the Employer’s allegations. As will be canvassed below, the parties disagreed, to a certain extent, on the threshold the Employer needed to cross to make out the allegations.

4The Employer acknowledges that it relied exclusively on circumstantial evidence when it terminated the Grievor. As will be set out in greater detail below, the Employer found a baggie with what appeared to be remnants of cannabis in the Employer-issued Non-Revenue Vehicle (“NRV”) the Grievor had been driving as part of his duties. The Employer also relied on the evidence of four Metrolinx employees who testified that the NRV the Grievor had been driving had a strong smell of marijuana after he had finished using it for the day. The Employer submits this circumstantial evidence establishes that it is was more likely than not that the Grievor was in possession of marijuana while at work and that he also used marijuana while at work.

5The Union takes the opposite view. According to the Union, the evidence does not establish that the Grievor was in possession of marijuana at work or that he used marijuana while at work. There was no direct evidence linking the Grievor to any marijuana. Nor was there any evidence of marijuana use at all. More importantly, the Union submits that the Employer’s investigation was so fundamentally flawed that the Grievor was never given a proper opportunity to establish his innocence. The Union argued that the Grievor’s evidence established alternative explanations for how the baggie ended up in the NRV. It disputes that the NRV had an odour of marijuana. In the circumstances, the Union takes the position that the Employer has not called clear and convincing evidence that establishes that there are no other possible explanations for the evidence relied on to justify the termination of the Grievor. The Union submits the grievance must be allowed, the Grievor should be reinstated and made whole.

6For the reasons set out below, I am satisfied that the Employer had just cause to terminate the Grievor for possession and use of marijuana at work. The evidence, while circumstantial, established that it was more probable than not that the Grievor was in possession of marijuana while at work and that he consumed marijuana while at work. As such, the Employer satisfied the burden of proof required by the balance of probabilities. That being said, I would also point out that the evidence established that there was simply no other possible explanation for how the baggie of marijuana remnants ended up in the NRV used by the Grievor or how that vehicle came to have a strong smell of smoked marijuana. As such, the grievance is dismissed.

II. Summary of Facts

7The evidence is not particularly complicated. The Grievor worked as a Plant Service Person 1 (PSP1). At a high level, as a PSP1 the Grievor was required to drive from station to station, in an Employer issued NVR, picking up garbage and cleaning the stations.

8On September 1, 2023, the Grievor worked the morning shift from 6 a.m. – 2 p.m. The Grievor’s last stop, before returning to Middlefield station, was the Markham Go East Station. According to the NRV’s telematics the Grievor was parked at the Markham Go East Station for over an hour. The telematics also showed that the NRV was idling for approximately 55 minutes. The Grievor then arrived back at the Middlefield station at approximately 1:10 p.m. After completing some paperwork, the Grievor turned his keys in at approximately 1:40 p.m. He then checked out and went home for the long-weekend. The Grievor was next scheduled to work on Tuesday September 5, 2023.

9Greg Lloyd also worked as a PSP1. On September 1, 2023, Mr. Lloyd was scheduled to work the 2 p.m. – 10 p.m. shift. He was assigned the same NRV the Grievor had used on the morning shift. No one else used the NRV between the Grievor and Mr. Lloyd.

10Mr. Lloyd approached the NRV at approximately 2:45 p.m. on the day in question. He opened the car door and immediately noticed a strong skunk smell. Mr. Lloyd described the smell as overpowering. Mr. Lloyd asked his colleague, Mr. Noah Webley, to confirm what he smelled. Mr. Webley indicated that he thought there was a strong smell of smoked marijuana. Shortly thereafter, Mr. Lloyd and Mr. Webley found a baggie in the centre console of the NRV that appeared to have marijuana flakes in it. Mr. Webley indicated that he believed the baggie contained marijuana crumbs. Mr. Lloyd placed the baggie under a windshield wiper of the NRV.

11At approximately 3:00 p.m., Mr. Lloyd and Mr. Webley went to report the incident to the Manager of Grounds Maintenance (at the time) Ms. Anna Marie Burrows. She accompanied Mr. Lloyd and Mr. Webley back to the vehicle. She confirmed that there was a strong smell of cannabis coming from the vehicle. She also believed the baggie contained a small amount of cannabis flakes.

12Ms. Burrows then called Customer Protective Services (“CPS”). CPS dispatched Mr. Chris Svoboda, a Manager with CPS, to the Middlefield station. According to Ms. Burrows, CPS are effectively Metrolinx’s police. Mr. Svoboda arrived at approximately 5:10 p.m. According to Mr. Svoboda, the vehicle had a strong smell of smoked cannabis. Mr. Svoboda was also of the view that the baggie contained remnants of marijuana flakes.

13Ms. Burrows met with Ms. Teresa Kahnert, the Manager of Cleaning (at the time), responsible for PSP1s and PSP2s. Following their conversation, and having considered the strong smell of marijuana coming from the vehicle and the baggie of marijuana found in the console of the NRV, Ms. Burrows concluded that the Grievor had possessed and smoked marijuana while on duty on September 1, 2023.

14The Employer made no attempt to reach the Grievor between the end of his shift on September 1^st^ and his next shift on Tuesday September 5^th^.

15Ms. Burrows and Ms. Kahnert met with the Grievor and Andrew Lee (a Union representative who was present via TEAMS) on Tuesday September 5^th^ at the beginning of the Grievor’s next scheduled shift. During that meeting, the Employer raised their concerns with the Grievor about the smell of marijuana in the NRV and finding a baggie with marijuana remnants in the console of the NRV. The Grievor denied the allegations. The Grievor denied using marijuana and said he had no idea how the baggie would have ended up in the NRV. He suggested that sometimes when he is leaving a station he notices a piece of garbage and will pick it up and throw it in his truck. The Grievor stated that that might have happened during his shift on September 1^st^ but that he was not sure.

16Following the meeting, the Grievor was placed on administrative leave pending the Employer’s ongoing investigation. The Grievor was terminated on November 8, 2023.

17The Grievor was never subjected to a drug test. Nor were the contents of the baggie found in the console of the NRV ever tested.

III. Position of the parties

A. Position of the Employer

(i) Just Cause

18The Employer argued that it had just cause to terminate the Grievor for use and possession of marijuana on the job. The Grievor was working in a safety sensitive position. He was required to drive from station to station and worked in the vicinity of train tracks. According to the Employer, the Grievor had to be alert to his surroundings. In addition, he worked independently with little to no supervision.

19The Employer noted that Mr. Webley, Ms. Burrows and Mr. Svoboda all confirmed that there was a strong smell of marijuana in the NRV after the Grievor had used it. Mr. Lloyd indicated that he thought it smelled like a skunk. They also all concluded that the baggie found in the centre console of the NRV contained marijuana debris. None of these witnesses had a reason to lie.

20The Employer also relied on the Grievor’s disciplinary record. Within the 18 month sunset clause set out in the Collective Agreement, the Grievor had received a written warning on June 20, 2023 for an expired driver’s license, a final written warning on August 30, 2023 related to attendance issues and another written warning on September 5, 2023 for disrespectful behaviour.

21The Employer took the position that the Grievor was not a credible witness. The Employer submitted that the Grievor’s explanation for how the baggie ended up in the middle console of the NRV lacked credibility. Even if his explanation for placing random litter in the cab of the NRV is accepted (something the Employer argued against), it did not explain how the baggie ended up in the centre console. Placing the baggie in the console would have required an additional step by the Grievor.

22The Employer noted that Mr. Lloyd and Mr. Webley both testified that they would never place litter inside the cab of the NRV. Ms. Burrows also testified that she would not expect a PSP1 to place garbage inside the NRV.

23The Grievor was also unable to provide any explanation, whatsoever, about why the NRV smelled of marijuana. The Employer noted that the Grievor testified that he did not smell anything unusual in the NRV. The Employer argued that this evidence should be contrasted with the evidence of Mr. Lloyd and Mr. Webley, two bargaining unit members with no reason to lie, Ms. Burrows, the Grievor’s manager, and Mr. Svoboda.

24The Employer also argued that the Grievor’s evidence surrounding idling in the Markham East Go station was not credible. The Employer noted that the Grievor did not dispute idling for approximately 55 minutes. However, his evidence, that he would leave his NRV idling, even when he was not inside the vehicle, was not believable. The Employer noted that not only is leaving an NRV idling for that amount of time contrary to its policies, it did not ring true.

25The Employer cited a few other examples that it said exemplified the Grievor’s lack of credibility. The Grievor testified that during the investigation meeting he offered to undergo a drug test. The Employer noted that this claim was not corroborated in any of the interview notes or in the Employer’s evidence. Nor had the Grievor raised it at any time prior to this testimony. When confronted with this lack of any corroboration in the interview notes, the Grievor indicated that he made the offer in the hallway on the way into the interview. The Employer argued that this evidence was not believable.

(ii) Standard of Proof

26The Employer argued that in civil cases there is only one standard of proof and that it is the balance of probabilities. The balance of probabilities requires the decision-maker to determine whether it is more likely than not that an alleged event occurred (F.H. v. McDougall, 2008 SCC 53).

27As set out above, the Employer acknowledged that its case was based exclusively on circumstantial evidence. The Employer noted that in AMAPCEO (Bhattacharya) and Ontario (Ministry of Government and Consumer Services), 2017 CanLII 21084 (ON GSB), Vice-Chair Anderson stated that in cases reliant on circumstantial evidence, the role of the decision-maker is to determine whether the alleged facts can be inferred from the proven facts. And according to the Vice-Chair, that process of inferential reasoning is also subject to the balance of probabilities. In other words, in order to conclude that something has been established based on circumstantial evidence on a balance of probabilities, the decision-maker must be able to conclude that it is more likely than not that an alleged fact can be inferred from the proven facts.

28Vice-Chair Anderson provided the following test when faced with an alleged unjust dismissal, where the Employer relies on circumstantial evidence:

To discharge that burden in a case of circumstantial evidence, the inference which an employer asserts should be drawn must be more likely than not on the facts established as a whole on a balance of probabilities, and of course such evidence must be clear and cogent. The issue is always whether the inference asserted by an employer is more likely than not on the facts as found. If it is, that there are other inferences which can be drawn is of no legal consequence.

29In OPG and Society of Energy Professionals 2016 CanLII 51288 (ON LA) Arbitrator Surdykowski stated the following with respect to cases that rely on circumstantial evidence:

it is appropriate to give significant weight to circumstantial evidence which calls for an explanation. This does not change the burden of proof. The employer continues to bear that onus, but where circumstantial evidence reasonably demands an explanation and no satisfactory explanation is given the appropriate negative inference may properly be drawn.

The Employer argued that in a case like this, where the circumstantial evidence of the baggie and the smell in the NRV call for an explanation, and the Grievor failed to provide one, it is appropriate to draw an inference that there is no such explanation (other than that alleged by the Employer).

(iii) Termination in drug cases based on circumstantial evidence

30Finally, the Employer relied on a series of cases where employees have been terminated for drug offences based only on circumstantial evidence (Resource Development Trades Council of Newfoundland & Labrador v. Voisey’s Bay Employer’s Assn Inc, 2004 CarswellNfld 423 (NL LA); Finlay Forest Industries Inv. V. IWA Local 1-424, 1999 CarswellBC 3666 (BC LA); and Interlake Acquisition Corp. v. Independent Paperworkers of Canada, Local 124, 2004 CarswellOnt 10659. The Employer noted that in all of these cases, there was no direct evidence linking the grievors to the alleged drug offences and yet the terminations were nonetheless upheld.

(iv) Law applied to this case

31The Employer submitted that the following evidence supported the conclusion that it was more probable than not that the Grievor was in possession of marijuana and had consumed marijuana while at work:

• a baggie with marijuana flakes was found in the centre console of the NRV;

• four witnesses testified that the NRV had a strong odour of marijuana after the Grievor had used it;

• the Grievor was the last person to use the NRV before the baggie and smell were discovered; and

• the baggie and smell were immediately reported to the manager.

32The Employer also argued that the Union did not establish a compelling explanation for the established facts. The Union’s case, according to the Employer, amounted to nothing more than a denial. The Grievor denied both that he was responsible for the baggie found in the centre console of the NRV and that the NRV had a strong odour of marijuana. According to the Employer, the Grievor’s explanation with respect to the baggie, that on occasion he picked up litter and threw in the cab, did not in fact explain how that baggie ended up in the NRV’s centre console.

33Finally, the Employer argued that there were no mitigating factors that would favour a lesser penalty than termination. The Grievor had 11 years seniority, a length of time the Employer characterized as not short but not lengthy. The nature of the offence was serious, especially in a safety sensitive position such as PSP1. The Grievor worked alone, without supervision and had three instances of prior discipline on his record. Finally, the Grievor had not acknowledged any wrong doing.

B. Position of the Union

(i) No just Cause

34The Union argued that the Employer did not establish just cause for the termination of the Grievor. According to the Union, the Employer’s investigation was fundamentally flawed. In particular, the Union emphasized the Employer’s failure to administer a drug test under the Employer’s Fitness for Duty policy (“FFD policy”). The Union argued that the failure to administer the test not only violated the Employer’s own policy but deprived the Grievor of the right to establish that he never used marijuana at all (as he claimed).

35The Union acknowledged that the Employer did not become aware of the allegations against the Grievor until after he left work. However, the Union submitted that the Employer could have gone to the Grievor’s house the evening of September 1^st^ to test him. Alternatively, the Employer could have tested the Grievor when he arrived at work on Tuesday September 5^th^. Instead the Employer did neither and failed to provide a cogent explanation as to why. The Union was critical of the Employer’s decision not to test the Grievor arguing that if the Employer’s allegations were accurate, allowing the Grievor to drive while under the influence constituted a real safety threat to the Grievor and the public in general.

36In addition to the failure to test the Grievor, the Union argued that the Employer’s evidence failed to establish the alleged misconduct. The Union took the position that Ms. Burrows’ evidence that PSP1s should not put litter in the cab of the NRV should not be given any weight because Ms. Burrows had never done that job and therefore lacked the insight required to draw that conclusion. Similarly, the Union noted that the evidence regarding the idling of the NRV in the Markham Go East parking lot was totally devoid of context. The Union argued that the Employer did not call any other evidence that would help establish whether the idling time noted was out of the ordinary. Finally, the Union emphasized that the Grievor was not disciplined for idling or for placing litter in the cab of the NRV. As such this evidence was not helpful to the Employer in establishing just cause.

37The Union was also critical of the fact that the Employer never tested the contents of the baggie found in the NRV’s centre console. As such, there was no proof that the baggie even contained marijuana. The Union noted that there was no other evidence of any drug use in the NRV. There were no rolling papers, no ashes, and no “roaches”. Similarly, the Union was critical of the Employer’s failure to interview any other employees who may have come in close contact with the Grievor at the end of his shift to determine if they observed any conduct, or smelled any odours, that could have shed light on his state.

38Applying a “common sense” approach, the Union also argued that it defied logic that the Grievor would smoke marijuana in the NRV when he knew that someone else would be driving the same NRV shortly after the end of his shift. The Union noted that the Grievor was a heavy cigarette smoker. The Grievor testified that he never smoked cigarettes (or anything else for that matter) in the NRV because he knew the smell would linger and would be easily identified by whomever used his vehicle next.

39The Union argued that even though the Grievor is not required to provide an explanation he did so anyway and his explanation was compelling. The Grievor occasionally came across litter when he was leaving a station. When that happened, he would pick it up and throw it in the cab of the NRV to dispose of later. Although he could not recall the specifics of the day in question, the Grievor suggested that that was likely what happened with the baggie. The Union argued that both Mr. Lloyd and Mr. Mebley’s evidence supported the conclusion that this was a common practice amongst PSP1s.

40Finally, the Union took the position that the Grievor was a credible witness. The Union noted that he resisted the tug of self-interest and readily admitted where he did not always follow the Employer’s protocols. For example, the Grievor acknowledged that he did not necessarily follow the trash protocol when he placed litter in the cab of the NRV, or the policy on idling when he idled in the parking lot.

(ii) Standard of Proof applied to this case

41The Union argued that the Employer had failed to prove that the Grievor was in possession of cannabis at work, or that he smoked cannabis while at work. According to the Union, in order to satisfy the onus in this case, the Employer was required to establish, on the basis of clear and convincing evidence, that there was no other explanation to explain the baggie and the smell of marijuana in the NRV, other than the Employer’s allegations. In other words, to make out its case, the Employer needed to establish that there was no explanation for the baggie and the smell of marijuana other than that the Grievor was in possession of marijuana while at work and that he smoked marijuana in the NRV.

42According to the Union, because the Employer failed to carry out a proper investigation into the allegations, it could not rule out all other explanations. The Union relied on Ontario (Attorney General) v. Ontario Public Sector Employees Union, 1989 CanLII 9348 (ON GSB) in support of this position.

43As referred to above, the Union also argued that the Grievor is not required to provide an explanation for the circumstantial evidence relied on by the Employer. In Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, 1992 CanLII 14526 (ON LA), Arbitrator Bendel noted that there is no legal onus on the grievor to put forward an explanation that would exonerate him. That being said, when an explanation is brought forward, as was in this case according to the Union, the Grievor can help his case.

44The Union also relied on the Supreme Court’s decision in F.H. v. McDougall, 2008 SCC 53. The Union acknowledged that the Court concluded that the only question to be answered under the balance of probabilities is whether it is more likely than not that the alleged event occurred. However, the Union also noted in order reach such a conclusion on the balance of probabilities, a party must establish the facts relied on. If, as was the case here, certain facts are precluded at the outset from consideration, it will not be possible to conclude that it is more likely than not that the event at issue actually occurred. Put more concretely, the Union argued that because the Employer failed to carry out a proper investigation it could not conclude, on a balance of probabilities, that the Grievor was in possession of marijuana while at work or that he consumed marijuana at work.

45In Rieter Automotive Canada v. National Automobile Aerospace, Transportation & General Workers Union of Canada CAW-GTCA Canada, 2008 CanLII 63550 (ON LA), the Grievor was terminated for smoking marijuana while at work. The Union relied on this case in support of its argument that factual evidence is required to assess the circumstantial evidence being relied upon. According to the Union, the baggy and a smell in the car are insufficient to establish the inferences being drawn by the Employer.

46The Union also relied on the decision in AMAPCEO (supra). As described above, in that decision Vice-Chair Anderson held that the process of inferential reasoning required in cases based on circumstantial evidence, such as this one, is also subject to the balance of probabilities. The Vice-Chair held that he had to be able to conclude that it was more likely than not an alleged fact could be inferred from the proven facts as whole. The Vice-Chair also held that there was an element of common sense that went into inferential reasoning.

47The Union relied on Vice-Chair Anderson’s reliance on common sense to challenge the conclusion that the Grievor would have smoked marijuana in the NRV knowing that a colleague would be using the vehicle shortly after the end of his shift. The Union argued that it defied any notion of common sense that a heavy cigarette smoker such as the Grievor, who was aware of the lasting smell of cigarettes, would smoke marijuana in the NRV.

48The Union also relied on the decision of Vice-Chair Kelly in International Brotherhood of Electrical Workers, Local 530 v. Mellon Inc., 20234 CanLII 79409 (ON LRB) to argue that the Employer failed to take steps to ensure that Grievor was not driving after hours despite their purported concern that he had smoked marijuana while at work. The Union argued that the Employer’s failure to take any steps to ensure the Grievor was safe may belie their claim that they had a reasonable suspicion of impairment.

49Finally, the Union relied on the decision of Arbitrator Nairn in Amalgamated Transit Union – Local 1587 (Policy) and The Crown in the Right of Ontario (Metrolinx), 2025 CanLII 18169 (ON GSB). In that decision, Arbitrator Nairn summarized expert evidence before her establishing that marijuana stays in a user’s system longer than alcohol and that as such a test taken on Tuesday September 5^th^ would have been positive had he smoked marijuana on Friday September 1^st^.

C. Employer Reply

50In reply the Employer argued that by the time it became aware of the possibility that the Grievor had consumed marijuana while at work, the Grievor was off-duty and either already home or on his way home. At that point, the Employer decided not to move forward with a drug test under the FFD policy. The Employer argued that in reaching that decision they balanced the Grievor’s privacy interests against its safety interests and decided not to call the Grievor back in to take a test.

51In response to the Union’s argument that failing to follow up with the Grievor after it discovered the smell of marijuana and the baggie in the NRV created a safety hazard, the Employer indicated that the Grievor was not terminated for being high at work. The Employer acknowledged that it did not know how much marijuana the Grievor smoked or when during the day he may have smoked it. The Employer argued that it terminated the Grievor for being in possession of marijuana and using marijuana at work.

52In terms of what could have been gained by testing the Grievor, the Employer noted that there was no evidence before me about what a test for cannabis under the FFD policy would have or could have established. For example, the Employer argued that whether a negative test on the Tuesday could have confirmed that the Grievor had not smoked marijuana over the previous five days was not established on the evidence before me.

53At the end of the day, the Employer reiterated that the question for me to determine was whether the allegation that the Grievor was in possession of marijuana and used marijuana at work was more likely than not based on the established facts. The Employer argued that it was and that as such the grievance should be dismissed.

IV. Analysis

54The first issue to be determined in this case is quite simple. Applying the balance of probabilities, is it more probable than not that the Grievor was in possession of marijuana and smoked marijuana while at work on Friday September 1, 2026.

55On the basis of the circumstantial evidence described above, I am satisfied that it is more probable than not that the Grievor was in possession of marijuana while at work on September 1, 2023 and that he smoked marijuana while at work on that same day.

56There was no dispute that the NRV in question was last used by the Grievor. There was no evidence that suggested that the baggie was in the NRV prior to the Grievor taking it out on the day in question. There was no evidence that the NRV smelled of marijuana prior to the Grievor’s shift. In other words, the baggie and the smell appeared in the NRV during the Grievor’s shift on September 1^st^.

57Put in its simplest terms, prior to the Grievor’s shift on September 1, there was no baggie with marijuana flakes in the NRV and the NRV did not smell of marijuana. By the end of his shift, there was a baggie with what appeared to be marijuana flakes in the centre console of the NRV and the NRV had a strong smell of marijuana. In those circumstances, where the Grievor was the only person to use the NRV during the relevant time, not only is it more probable than not that the Grievor was responsible for the baggie and the odour, there is no other possible explanation.

58As set out in Ottawa Board of Education, the Grievor is not required to provide an explanation in response to circumstantial evidence. However, where a grievor can provide a compelling explanation they will help their case insofar as their explanation can reduce the probability that they were responsible for the alleged misconduct. In short, it makes sense that where a grievor can provide an explanation that calls into question their own culpability, an employer’s theory assigning blame to that grievor will become increasingly less probable and therefore less able to satisfy the balance of probabilities test.

59In this case, the Grievor did not provide any explanation for the baggie found in the centre console. Nor did he explain how the NRV came to have a strong smell of marijuana. At most, the Grievor provided an explanation for how the baggie could have ended up in the cab of the NRV. He had no explanation for how the baggie could have gone from the cab to the console or for how the NRV came to smell of marijuana.

60As described above, three witnesses, including one other PSP1, testified to the strong smell of marijuana in the NRV. Another PSP1 testified to a skunk smell in the NRV. There was no suggestion that any of the witnesses had a reason to lie about the smell in the NRV or what they believed to be in the baggie.

61The Employer noted that the contents of the baggie were never tested and that as such there was no direct evidence that it contained cannabis. As set out by Vice-Chair Anderson in AMAPCEO, where a case is argued on the basis of circumstantial reasoning, the inferences drawn by the decision are also assessed against the balance of probabilities. In this case, the NRV had a strong odour of marijuana. The Employer found a baggie that appeared to contain marijuana flakes. A picture of the baggie was entered into evidence. The Employer’s witnesses all testified that it appeared to them that the baggie contained remnants of marijuana. No other explanations were offered for what the content of the baggie could be. In the circumstances, and in particular in light of the strong smell of marijuana in the NRV, it is reasonable to infer that it is more probable than not that the baggie contained marijuana flakes.

62What about the Employer’s failure to test the Grievor for marijuana. The Union argued this failure fundamentally undermined the Employer’s case. First, I agree with the Employer that there was no evidence before me establishing what a test under FFD policy could have revealed. That being said, there is considerable case law that includes expert witnesses opining on the limits of testing for marijuana. For example, it is generally understood that cannabis stays in the system for a longer period of time than alcohol and that while positive tests for marijuana can confirm that an individual has used marijuana within a certain amount of time, it may not be able to establish precisely when cannabis was last consumed or whether an individual was impaired at the time of the test.

63All of that being said, the Employer was not under an obligation to carry out a drug test in every case under the FFD policy. The FFD policy sets out situations where tests may be required. It provides managers with discretion to consider whether or not a test is appropriate. For example, drug testing may be required under the FFD policy when a manager has reasonable grounds to believe that the actions, appearance or conduct of an employee while at work indicates the use of drugs.

64Here, the evidence established that the Employer considered requiring the Grievor to undergo a drug test but ultimately decided against it. This decision was informed, at least in part, by the fact that the Grievor had already left work by the time the Employer became concerned about the Grievor’s conduct. There were no observations of the Grievor while at work to support testing under the FFD policy. Ms. Khanert indicated that when the Grievor returned to work on the Tuesday morning he appeared fit for duty and as such there was no reason to test him at that time.

65For the purposes of this decision, I need not decide if the Employer breached the FFD policy by not testing the Grievor. The issue in this case is not whether the Employer was required to test the Grievor under the FFD policy. The issue is whether the Employer established on a balance of probabilities that it had just cause to terminate the Grievor for possession of marijuana at work and for consuming marijuana at work.

66This situation is somewhat anamolous. In most cases, a Grievor challenges an Employer’s right to administer a drug test. Here the Grievor argues that he should have been tested. In this context, it is worth noting that there was nothing stopping the Grievor from undertaking his own drug test. If, as he claims, he has never smoked cannabis (or at least not since high school) and that as such the test results would have cleared him from the Employer’s allegations, the Grievor could have decided to take his own test to establish that fact. He chose not to.

67Finally, in these circumstances, it is worth making a few comments on credibility. I did not find the Grievor to be a credible witness. There were at least three examples where I found the Grievor’s evidence to be untrustworthy. First, the Grievor testified that it was his practice to leave his vehicle idling when he was cleaning a parking lot even when he was not in the car. This was inconsistent with the Employer’s evidence that leaving the NRV idling for almost an hour was very unusual. It struck me as an after the fact attempt to explain a potentially suspicious amount of otherwise unaccounted for time. According to Ms. Burrows, staff are notified that they are not supposed to idle for more than five minutes.

68Second, the Grievor testified that he asked to undergo a drug test when he returned to work on the Tuesday. The Grievor had never mentioned such a request prior to the hearing. Similarly, Ms. Kahnert’s contemporaneous notes made no mention of such a request. The Grievor acknowledged that Ms. Kahnert’s notes were an accurate reflection of the conversation but suggested that he proposed taking a drug test prior to the meeting formally beginning when he was still in the hall. This evidence was not believable.

69Third as set out above, the Grievor’s testimony that he may have picked up the baggie with the marijuana remnants and placed it in the cab of NRV did not explain how that baggie ended up in the centre console. While I accept that the Grievor may have thrown garbage in the cab of the NRV when he was leaving a station, relying on that explanation for how the baggie ended up in the console was not credible because it failed to actually explain the baggie ending up in the console.

70Having concluded that it is more probable than not that the Grievor was in possession of marijuana at work and that he smoked marijuana at work, the next question is whether that misconduct amounts to just cause for termination. The analysis for just cause requires consideration of the following questions: (1) has the Grievor engaged in conduct deserving of discipline. If yes, (2) is termination appropriate. If no, (3) what discipline is appropriate. In this case I am satisfied that termination is a reasonable penalty. I have reached this conclusion for the following reasons.

71First, possession of marijuana at work, and smoking marijuana at work, are very serious offences and are deserving of discipline. This is especially the case because the Grievor worked in a safety sensitive position with minimal supervision. The Employer has a clear interest in ensuring that its employees are not in possession of, or consuming marijuana while at a station or when driving between stations. Both of those circumstances present clear and obvious safety hazards.

72Second, none of the mitigating factors routinely reviewed by arbitrators to determine if a lesser penalty might be appropriate help the Grievor in this case.

73Most importantly in that regard is the Grievor’s failure to acknowledge any wrongdoing. The Grievor has remained steadfast that he did not know how the baggie ended up in the center console of the NRV and that he did not smoke any marijuana on the day in question. I have already concluded that the Grievor’s evidence on these issues was not credible.

74In addition, the Grievor had an uneven disciplinary history. The Grievor received a disciplinary written warning on June 20, 2023 and a final written warning on August 30, 2023. On September 5, 2023 the Grievor received another final written warning. While none of this discipline relates to the use or possession of drugs at work, it nonetheless shows an employee with a less than ideal disciplinary record.

75Finally, while the Grievor has approximately 11 years of service at the time of termination, that is not a sufficiently lengthy period of service to overcome the other factors. As set out above, possession of marijuana and consuming marijuana at work are very serious offences.

76Accordingly, and for all of the above reasons, the termination of the Grievor is upheld and the grievance is dismissed