Restaurant victorious in medical marijuana user’s human rights complaint

A medical marijuana user has lost his human rights case over a Burlington, Ont., restaurant’s move to ban him from the premises for smoking pot near the entrance.

The case, which attracted a lot of attention due to the conflict between Steve Gibson’s right to use his medication and Ontario’s anti-smoking laws, dealt with allegations of discrimination on the basis of disability in services. According to the complaint, owner Ted Kindos of Gator Ted’s Tap & Grill asked Gibson to leave and never return after he went to the parking lot to take his medication on May 18, 2005.

The Human Rights Tribunal of Ontario issued its ruling this month. “In my view, the complainant has not established that he has any disability-related need to smoke marijuana in close proximity to the restaurant’s entrance, or that the respondents’ requirement that he not do so created any disadvantage for him in relation to disability,” wrote tribunal vice chairman Brian Eyolfson in Gibson v. Ridgeview Restaurant Ltd. on July 4.

“The complainant simply did not argue, nor did he present any evidence, that he was disadvantaged in any way by the respondents’ requirement that he not smoke marijuana in close proximity to the restaurant’s entrance. Rather, he denied that he did so. However, I have found that the complainant did smoke marijuana in close proximity to the restaurant’s entrance, after being asked not to do so, and that this is why he was ultimately asked not to return to the restaurant.

“In the particular circumstances of this case, I am not satisfied that the complainant has established a prima facie case of discrimination within the meaning of the code. I find that the complainant has not established that he was disadvantaged in any way related to disability by the respondents’ requirement that he not smoke marijuana in close proximity to the restaurant’s entrance.”

While Gibson denied smoking near the entrance, one of the witnesses, John Head, testified he once had to walk through marijuana smoke as he exited the restaurant. As a trucker, Head noted he was subject to drug testing and that second-hand marijuana smoke could affect the results and put his job in jeopardy. The ruling also considered the possible implications for the restaurant’s alcohol licence if it allowed someone to smoke marijuana on its premises.

One of the issues in a case like this is what constitutes proximity to the restaurant. While the ruling didn’t necessarily indicate a precise number, it referred repeatedly to the question of whether Gibson was smoking within roughly two metres of the entrance.

In the end, then, the tribunal dismissed Gibson’s complaint. “In my view, the respondents’ requirement that marijuana not be smoked in close proximity to the restaurant’s entrance is reasonable and bona fide,” wrote Eyolfson.

“It appears from the evidence that the respondents adopted the requirement in light of legitimate concerns for their patrons, including health-related concerns, that are ‘rationally connected’ to running a licensed bar/restaurant. It also appears that the respondents adopted the requirement in good faith, in the belief that it was necessary in light of their legitimate concerns. Lastly, having regard to all of the circumstances, and not excluding ‘common sense,’ it appears that permitting the complainant to smoke marijuana in close proximity to the restaurant’s entrance would have given rise to undue hardship."

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