The Ontario Superior Court of Justice has mandated that a former employee undergo an independent medical examination (IME) to substantiate his claims of mental health issues preventing him from mitigating damages.
The decision, rendered by Justice Koehnen, highlights the balance between employee rights and employer defenses in the realm of wrongful termination and mental health claims.
Background
L.M., a 58-year-old former courier for Mercantile Exchange Corporation, alleged that he was unable to seek alternative employment due to stress and depression following his termination. Employed for over 25 years with an annual salary of about $52,000, he was let go on Oct. 10, 2023, when the company closed its internal delivery department.
Despite receiving 11 weeks’ working notice and about six months’ salary in lieu of notice, L.M. claims he is entitled to 26 months’ notice due to his inability to mitigate damages.
His argument centers on his mental health condition, which he asserts has incapacitated him from seeking new employment for nine months post-termination. His position suggests that his condition will continue to hinder him until he is cured, potentially extending through the entire 26-month notice period he seeks.
Employer asked for IME
Mercantile Exchange Corporation sought the IME under section 105 of the Courts of Justice Act and rule 33 of the Rules of Civil Procedure. The company argued that L.M.’s mental health claims should be independently verified given the substantial notice period he demands.
The worker’s counsel contended that ordering an IME in a wrongful dismissal case is unprecedented and argued that L.M.’s duty to mitigate is secondary to his claimed damages.
Justice Koehnen noted that while it is unusual to order an IME in wrongful dismissal cases, the unique circumstances warranted such a measure. He emphasized that L.M.’s claims, if untested, would be unfair to the employer.
“The mental condition of the plaintiff has been put into question in this proceeding by the plaintiff’s own choice,” Justice Koehnen stated, highlighting the extraordinary nature of L.M.’s position, which extends beyond the typical adjustment period courts recognize for dismissed employees.
Tactic for employers?
The court recognized the plaintiff’s fair concern that allowing IMEs in wrongful dismissal cases could become a tactic for employers to undermine legitimate claims. However, Justice Koehnen stressed the need for balance, pointing out that independent medical examinations are justified when a plaintiff’s claims significantly deviate from standard cases.
L.M. referenced several cases where courts acknowledged that dismissed employees might experience mental health issues impeding their ability to mitigate.
However, these cases did not involve court-ordered IMEs. Justice Koehnen referenced Brito v. Canac Kitchens, where an employee was found unable to mitigate due to health issues, noting that the court accepted the lack of a requested medical examination at the trial.
“Moreover, there was no evidence at trial that the respondent was requested and refused to submit to any examination or evaluation required or specified by the appellant or the Plan administrator,” the court said in Brito.
“This suggests that independent medical examinations are available in wrongful dismissal actions in appropriate circumstances,” Justice Koehnen said in this case.
A fair compromise
The ruling stipulates that if L.M. maintains his position of being unable to mitigate after 12 months, he must submit to an IME.
Justice Koehnen articulated this as a fair compromise, enabling employers to verify claims without exploiting the IME process.
“If someone takes a position as unusual as the plaintiff is taking, they should be prepared to subject themselves to an independent medical examination in order to test the assertions they are making,” he stated.
As the case proceeds, both parties are scheduled for examinations for discovery on September 26, 2024, with mediation to follow between October 21 and October 25, 2024.
For more information, see Marshall v. Mercantile Exchange Corporation, 2024 CanLII 71128 (ON SC).
