A recent Ontario Superior Court decision, McCarthy v. Bison Transport Inc., examines termination for cause where an employee in a safety-sensitive role failed a second drug test after receiving a prior warning. The case involved a long-haul transport driver who was terminated after testing positive for THC, contrary to the employer’s drug and alcohol policy.
The employee brought claims for wrongful dismissal, human rights damages, aggravated and punitive damages, and unpaid overtime. The Court dismissed the action.
For Ontario employers in transportation, logistics, construction, manufacturing, and other safety-sensitive industries, the decision highlights the importance of clear policies, consistent enforcement, documentation, and careful consideration of potential accommodation obligations.
Employee Was Long-Haul Truck Driver Subject to Drug and Alcohol Testing
The employee worked as a long-haul driver for a large Canadian trucking company. His duties included operating tractor-trailers on interprovincial and cross-border routes into the United States.
At the beginning of his employment, he attended an orientation covering safety requirements, maximum hours rules, and the employer’s drug and alcohol policy. He signed acknowledgements confirming that non-compliance could result in disciplinary action, including termination.
The policy classified drivers as holding safety-sensitive positions and permitted drug and alcohol testing, including random testing. It prohibited the presence of illicit drugs in the body while employees were conducting company business or on company premises.
The First Positive Cannabis Test and Written Warning
The employee first failed a random drug test in 2014 after testing positive for cannabis. He acknowledged using cannabis but did not indicate that he had an addiction or disability. The employer placed him on an unpaid leave and referred him to a substance abuse professional through an independent testing provider. The professional later advised that the employee did not have a current substance abuse or addiction problem.
The employee completed educational programming, passed return-to-work testing, and resumed his duties. He also signed a written warning stating that another breach of the workplace policy on drug and alcohol use could result in immediate termination.
This process became important to the Court’s analysis. Rather than immediately terminating the employee after the first test, the employer investigated whether addiction or dependency was present, facilitated his return to work, and clearly warned him about the consequences of another breach.
The Second Positive Test and Termination
In 2017, the employee was selected for another random drug test and again tested positive for THC. The employer reviewed his employment record, including the previous test, return-to-work process, and written warning.
Before terminating his employment, the employer met with him and requested an explanation. The employee admitted to using marijuana but described it as casual, one-time use. He did not suggest that he had an addiction, dependency, or disability requiring accommodation.
He also acknowledged understanding the policy and that a second violation could result in termination. The employer subsequently terminated his employment for cause without termination or severance pay.
The Court’s Approach to Just Cause
The Court considered the principles that apply when an employer relies on a workplace policy to justify termination for cause. An employer generally must establish that the policy was known to the employee, consistently enforced, and that the disciplinary response was proportionate to the breach.
Drug and Alcohol Policy Communicated to Employee
The Court found that the drug and alcohol policy had been communicated to the employee and was understood by him. He had signed policy acknowledgements when hired and a written warning following the first positive test.
Substance Use Policies Appropriate in Safety-Sensitive Industries
The Court also accepted that drug and alcohol policies may be appropriate in safety-sensitive industries, particularly where employees operate commercial vehicles. The employee’s long-haul and cross-border driving responsibilities gave rise to legitimate safety and operational concerns.
Considering the second positive test, previous warning, safety-sensitive duties, and surrounding circumstances, the Court concluded that termination was consistent with the policy and proportionate to the breach. The wrongful dismissal claim was therefore dismissed.
Court Provided Provisional Damages Assessment
Although the Court dismissed the wrongful dismissal claim entirely, it noted that even if the termination had been without cause, the employee’s damages would have been limited to $17,500. While the employee claimed $28,500, the Court found he had successfully mitigated his losses by securing new employment shortly after his dismissal.
Aggravated and Punitive Damages Denied
The Court firmly rejected the claims for aggravated and punitive damages. First, because the plaintiff brought the action under Simplified Procedure (Rule 76), claims exceeding the $200,000 cap were legally waived. More importantly, the Court held that the employer acted reasonably, transparently, and in good faith out of a legitimate concern for public safety, leaving no factual basis for moral or punitive remedies.
Accommodation and the Absence of a Disability
Another issue was whether the employer had a duty to accommodate the employee before terminating him. The employer’s policy stated that reasonable accommodation would be provided to employees dependent on alcohol or drugs.
However, the Court found that the employee did not have a drug-related disability and was not perceived by management as having one. Following the first test, the substance abuse professional had concluded that he did not have an addiction or substance abuse problem.
After the second test, the employee described himself as a casual user and did not raise addiction, dependency, or disability. He later confirmed that he did not believe he had ever had a substance abuse problem, and his claim was amended to remove an allegation that he had a disability. As a result, the Court found that no duty to accommodate arose. It also dismissed the human rights damages claim because there was no evidence that the employee had been discriminated against on the basis of an actual or perceived disability.
Employee’s Overtime Claim Also Rejected
The employee also claimed unpaid overtime for several years based on his own calculations. The Court first found that claims relating to pay periods more than two years before the action began were barred by Ontario’s Limitations Act, 2002. It rejected the argument that a six-year federal limitation period applied because the employer was federally regulated.
The remaining claim related to overtime allegedly worked in 2016. The employee estimated his hours by dividing mileage by an assumed average driving speed taken from uncited research. He also failed to calculate overtime consistently using the applicable weekly threshold and made arithmetic errors.
Furthermore, he claimed an hourly overtime rate of $67.50, which appeared to assume he was paid nothing for those hours. The Court noted that because he was already paid a base rate of $0.40 per mile, any potential damages would have been limited strictly to the difference between his base rate and the required 1.5x overtime rate. Although the Court questioned whether the employer’s blended mileage rate clearly demonstrated compliance with overtime requirements, the employee’s evidence was not sufficiently reliable to establish his damages. The overtime claim was dismissed.
The Importance of Consistently Communicating and Enforcing Workplace Policies
The decision illustrates the importance of having workplace policies that are clearly communicated, acknowledged, and consistently applied. The employer provided training, obtained signed acknowledgements, investigated whether addiction was present, permitted the employee to return to work, and issued a clear written warning.
Before terminating the employee after the second positive test, the employer also gave him an opportunity to explain. This documented, progressive process supported the employer’s position that the termination was proportionate.
Casual Drug Use vs. Drug-Related Disability
The decision further highlights the distinction between casual drug use and a drug-related disability. Employers should carefully assess whether addiction, dependency, or perceived disability may trigger accommodation obligations. On the facts of this case, however, the employee did not identify a disability, and the available information did not suggest that one existed.
Where public safety, regulatory compliance, and workplace risk are involved, employers may have significant operational concerns. This decision demonstrates how those concerns may be assessed when supported by a consistent and well-documented process.
Contact Bader Law for Modern Employment Law Solutions in Mississauga & Oakville
Workplace drug and alcohol policies, safety-sensitive positions, random testing procedures, overtime compliance, and termination-for-cause decisions can raise complex employment law and human rights considerations.
The knowledgeable employment lawyers at Bader Law assist employers with drafting workplace policies, reviewing discipline and termination processes, addressing accommodation obligations, and managing employment standards compliance in regulated and safety-sensitive workplaces.
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