A recent decision from the Ontario Superior Court of Justice provides employers with a roadmap of how to successfully implement the just cause dismissal of an employee occupying a safety sensitive position for breach of the company’s drug and alcohol policy.
Background
In McCarthy v. Bison Transport Inc.,[1] the Plaintiff employee was a long-haul driver for a national trucking company. Upon commencing his employment, the Plaintiff attended a five-day orientation session. As part of this orientation session, the Plaintiff received training on a variety of safety-related matters, including the Company’s drug and alcohol policy which required employees to complete “a drug/alcohol test on a random basis or when advised a test is required.” The Plaintiff signed an acknowledgement of the policy which confirmed that a breach of its terms could lead to disciplinary action up to and including termination of employment.
On November 4, 2014, the Plaintiff failed a mandatory random drug test administered by DriverCheck, testing positive for cannabis. In speaking with the Company’s Associate VP, Safety and Driver Development, the Plaintiff acknowledged that he had consumed cannabis. He did not suggest that he had any form of addiction or disability. The Company subsequently placed the Plaintiff on an unpaid leave of absence and referred the Plaintiff to a substance abuse professional, who designed a return-to-work program for the Plaintiff. This return-to-work program included mandatory educational programming and return-to-work testing requirements. The Plaintiff completed the educational program and returned to work on November 26, 2014. In so doing, the Plaintiff underwent further random drug testing (which he passed) and received a “Record of Written Warning” which noted that any future violations of the Company’s drug and alcohol policy could result in the Plaintiff’s immediate dismissal.
On October 25, 2017, the Plaintiff failed a second drug test, testing positive for a marijuana metabolite (THC). When asked to explain the failed drug test, the Plaintiff admitted to using marijuana and said it was a “single time” of marijuana use and that it would not happen again. The Plaintiff indicated that he was a casual user of marijuana and gave no indication that he had an addiction that required accommodation. As this was the Plaintiff’s second failed drug test and given the safety risks posed by drivers using drugs or alcohol, the Company terminated the Plaintiff’s employment for cause.
Key legal issues and findings
- Termination for cause — upheld
The Court confirmed that termination for breach of a workplace policy requires the employer to establish that the policy was: (i) well-known to the employee; (ii) consistently enforced; and (iii) that the consequences were proportionate to the breach. All three criteria were satisfied here. The Court noted that the Company had communicated the drug and alcohol policy at orientation, the Plaintiff had acknowledged the policy in writing and the Company had reinforced the Policy after the Plaintiff’s first offence. The Court accepted that the Company’s drug and alcohol policy was a reasonable and legitimate occupational requirement given the public safety risks inherent in operating commercial long-haul trucks.
- No duty to accommodate
The Court found no obligation for the Company to accommodate the Plaintiff because he had no drug-related disability. To that end, the Court relied on the substance abuse professional’s assessment after the Plaintiff’s first offence that he did not suffer from any sort of addiction or dependency issue along with the Plaintiff’s own admissions that he was a “casual user” of marijuana and the fact that the Plaintiff’s counsel withdrew any disability allegation during the litigation. On that basis, the Company did not have any obligation to accommodate the Plaintiff before terminating his employment.
Takeaways for employers
As noted above, this case provides clear guidance on how employers can successfully implement the just cause dismissal of an employee occupying a safety-sensitive role where the employee has breached the employer’s drug and alcohol policy:
- Document your policies and acknowledgments: In this case, the written warning after the first offence, combined with the employee’s signed policy acknowledgments at onboarding, were key to the Court’s finding that termination for cause was justified.
- Follow your own process before dismissing the employee: In accordance with the Company’s policy, the Company gave the Plaintiff an opportunity to explain himself before it made the decision to end the employment relationship. This procedural fairness supported a finding that the employer had “…acted reasonably and responsibly, out of a legitimate concern for public safety.”
- Accommodation obligations are triggered by disability, not by a positive drug test alone: Employers in safety-sensitive industries are entitled to rely on drug and alcohol policies when disciplining employees (including up to termination of employment) but must be prepared to accommodate employees who demonstrate a genuine dependency or addiction. The absence of any evidence of a substance abuse issue in this case meant that there was no duty to accommodate the Plaintiff employee.
For more information, please reach out to the author, Andy Pushalik.
[1] 2026 ONSC 3729.
