Executive Summary: Key Legal and Evidentiary Issues

• John McCarthy's wrongful dismissal claim against Bison Transport Inc. centred on whether his termination for a second failed drug test constituted just cause.
• Central to the analysis was whether Bison Transport's Drug and Alcohol Policy was communicated to, understood by, and consistently enforced against the Plaintiff.
• No duty to accommodate arose because McCarthy did not have, and was not perceived to have, a drug-related disability.
• McCarthy's overtime claim for 2013–2015 was statute-barred under Ontario's two-year limitation period, limiting the surviving claim to 2016 hours only.
• Unreliable methodology — including use of an uncited average speed, incorrect calculation periods, and arithmetic errors — rendered McCarthy's overtime calculations insufficient to establish damages.
• Aggravated and punitive damages were unavailable because Bison Transport acted in good faith, honestly, and without malice throughout the dismissal process.

Facts of the case

John McCarthy was hired as a long-haul driver by Bison Transport Inc. on October 8, 2013. Bison Transport is one of Canada's largest trucking companies, operating approximately 2,000 drivers on routes that include interprovincial and cross-border Canada–U.S. shipments. Approximately 22% of the miles McCarthy drove involved cross-border routes into the United States. His annual earnings were $69,316 in 2015, $74,074 in 2016, and $63,486 in 2017, the year he was terminated.

At a five-day orientation in October 2013, McCarthy was trained on Bison Transport's safety policies, including its Drug and Alcohol Policy. On October 9, 2013, he signed a Rules of Conduct and Drug and Alcohol Policy Acknowledgment, confirming his understanding that violations — including working under the influence or possessing illegal drugs — could result in disciplinary action up to and including termination. On November 4, 2014, McCarthy failed a mandatory random drug test administered by DriverCheck, testing positive for cannabis. He was placed on unpaid leave, referred to substance abuse professional Anne Marie Ireland of Choices Counselling and Consulting, and returned to work on November 26, 2014, after completing the required program. Ms. Ireland advised Bison Transport that McCarthy did not have a current problem with substance abuse or addiction. He received a Written Warning signed on November 27, 2014, which explicitly stated that any future failed drug or alcohol test could result in immediate termination.

On October 27, 2017, McCarthy again failed a random drug test, testing positive for a marijuana metabolite (THC). He was called to a meeting on November 2, 2017, at Bison Transport's Mississauga premises with Safety Counsellor Chris Gehue and Safety Manager Stephanie Fensom, who joined by telephone. McCarthy admitted to marijuana use, described it as a single occasion, and acknowledged he was a casual user. He gave no indication of addiction or dependency. Following that meeting, Fensom and Associate VP Garth Pitzel jointly decided to terminate McCarthy for cause, and he was presented with a termination letter the same day. Bison Transport paid no termination or severance pay and ceased his benefits immediately. McCarthy found new employment at another transportation company in December 2017, earning $66,163 in 2018.

Policy terms and contractual clauses at issue

McCarthy's employment contract required compliance with all conditions set out in Bison Transport's Employee Manual and Driver Reference Guide. The Rules of Conduct document he signed in October 2013 identified working under the influence of alcohol or illegal drugs, possession or distribution of illegal drugs, and violation of safety or health rules as infractions that could lead to termination. It also stated that violations of Federal Motor Carrier Safety Administration Regulations and Bison Transport's drug and alcohol policies could result in the loss of border-crossing capability, suspension of a FAST card, criminal charges, and termination of employment.

Bison Transport's Drug and Alcohol Policy designated all drivers as occupying safety-sensitive positions subject to mandatory drug and alcohol testing. The policy expressly provided that Bison Transport would offer reasonable accommodation to employees dependent on alcohol or other drugs. However, an employee with a positive test result could face suspension, reassignment to a non-safety-sensitive position at lower pay, or termination of employment.

Reasoning and analysis

Justice Charney applied the established framework for termination based on breach of corporate policy, requiring the employer to demonstrate that the policy was well-known to the employee, consistently enforced, and that the consequences were proportionate to the breach, citing Hampton Securities Limited v. Dean, 2018 ONSC 101. The court accepted that Bison Transport's drug and alcohol testing regime was legitimate for a safety-sensitive industry, drawing on Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426, and Milazzo v. Autocar Connaisseur, 2003 CHRT 37, for the proposition that pre-employment and random drug testing is a lawful and recognized safety measure in commercial transportation.

The court found that the policy had been clearly communicated to McCarthy at orientation, that he had signed the relevant acknowledgment forms, and that he understood — following his first failed test — that a second offence could result in termination. The employer had also met with him prior to the termination decision to allow him to explain his circumstances. The court rejected any duty to accommodate McCarthy, as no addiction or dependency was established. Ms. Ireland's 2014 assessment confirmed no substance abuse problem, McCarthy himself confirmed at the hearing that he did not believe he had or ever had a substance abuse issue, and his counsel had withdrawn the disability allegation from the Statement of Claim during the litigation. The court concluded that the termination was proportionate and satisfied a reasonable and bona fide occupational requirement.

On the overtime issue, the court held that McCarthy's claim for 2013–2015 was statute-barred under the two-year limitation period in Ontario's Limitations Act, 2002, as McCarthy would have discovered any underpayment upon receiving his pay stubs. The court rejected the argument that the federal six-year limitation period in the Federal Courts Act applied, as that provision governs proceedings in the Federal Court, not the Ontario Superior Court. Only the 2016 overtime claim — calculated by McCarthy at 743.80 hours — survived the limitation period. Even then, the court found McCarthy's methodology deeply flawed: he was not a qualified expert, the average speed of 43 miles per hour he used came from an uncited American source, many of his calculations used periods longer than the 7-day window required under the Motor Vehicle Operators Hours of Work Regulations, and he acknowledged making arithmetic errors on cross-examination. His proposed overtime rate of $67.50 per hour was also found to be incorrect, as his damages should have been limited to the difference between his base rate and 1.5 times that rate. The court found his overtime evidence to be an unreliable basis for calculating damages.

Regarding aggravated and punitive damages, the court held that even if wrongful dismissal had been established, nothing in Bison Transport's conduct met the legal threshold. Bison Transport had acted transparently and in good faith throughout, motivated by legitimate public safety concerns. There was no evidence of bad faith, malice, or reprehensible conduct as required under Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, and Honda Canada Inc. v. Keays, 2008 SCC 39.

Ruling and overall outcome

Justice R.E. Charney dismissed the Plaintiff's claim in its entirety on June 25, 2026. The court upheld Bison Transport's termination of McCarthy for cause, finding it consistent with a legitimate and properly communicated drug and alcohol policy applied to a safety-sensitive position. The overtime claim failed due to the limitation period and the insufficiency of McCarthy's evidence. No aggravated, punitive, or human rights damages were awarded. Bison Transport was the successful party; no monetary amount was awarded to the Plaintiff. The parties were invited to agree on costs, with leave to file submissions if agreement could not be reached.