The end of the road for a safety-sensitive position
Random drug and alcohol testing remains one of the most contentious issues in Canadian employment law.
In McCarthy v. Bison Transport Inc., 2026 ONSC 3729, the Ontario Superior Court of Justice addressed the consequences of a second positive random drug test for a long-haul trucker operating on cross-border routes.
The decision provides important guidance on the intersection of random testing policies, safety-sensitive positions,
and human rights obligations.
The plaintiff was employed as a long-haul driver by Bison Transport Inc., one of Canada’s largest trucking companies. As a driver operating tractor/trailer units on designated routes (including cross-border routes between Canada and the United States), he held a safety-sensitive position. Notably, cross-border trucking operations are subject to U.S. Department of Transportation regulations that mandate random drug and alcohol testing for commercial vehicle operators.
Bison had a drug and alcohol testing policy that included random testing. This policy was clearly communicated to employees. During a five-day orientation session in October 2013, the driver signed acknowledgements confirming his understanding of the policy, including the “Rules of Conduct, including Drug and Alcohol Policy Acknowledgment,” which stated that a “Zero Tolerance Policy will be applied to violators” and that violations could lead to “disciplinary...
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