The Ontario Superior Court of Justice has ordered a former Bombardier Transportation Canada employee to undergo a medical examination and answer previously unanswered questions related to her substance use. The worker was fired after testing positive cocaine in the wake of a traumatic incident during which she was kidnapped, robbed and drugged.
The decision, delivered by Justice S.J. Wojciechowski, addresses several issues in the wrongful dismissal claim, which includes allegations of discrimination based on disability and violations of the Human Rights Code.
N.B., who worked for Bombardier for over nine years, was terminated in May 2022 following a positive drug test for cocaine. Bombardier maintains that her termination was justified, citing a breach of its drug and alcohol policy and her dishonesty regarding substance use.
Court orders medical assessment
Bombardier sought to compel N.B. to undergo a psychiatric assessment to determine whether she suffers from a disability, including a substance use disorder. The company argued that an independent medical examination (IME) by Dr. Ashley Bender was necessary to assess the impact of N.B.’s mental health on her employment and her adherence to the company’s drug and alcohol policies.
N.B. opposed the examination, asserting that her clinical notes and records should suffice as evidence and that a new examination could harm her mental health. However, the court disagreed, ruling that Bombardier is entitled to a comprehensive assessment.
“Bombardier is entitled… to assess that position through examination by an expert who can comment upon the existence of (her) substance use disorder and the degree to which it may have impacted upon her employment,” Justice Wojciechowski wrote.
N.B. has been ordered to attend an assessment with Dr. Bender by September 30, 2024, and the report must be delivered by October 15, 2024. If necessary, N.B. may provide a responding report by November 15, 2024. The ruling noted that while the timing of the request is close to the trial date, Bombardier is entitled to the examination to respond to medical evidence provided by her treating physician.
Discovery disputes addressed
The ruling also resolves disputes over several unanswered questions from N.B.’s discovery, many of which relate to her substance use before her termination. Bombardier argued that these questions were relevant to understanding the extent of N.B.’s alleged disability and her ability to comply with the company’s policies.
The court ordered N.B. to answer key questions, including whether she had previously violated Bombardier’s drug and alcohol policy and whether her friends or family had expressed concerns about her substance use before March 2022.
Justice Wojciechowski stated that Bombardier’s questions about her conduct were relevant to the case, as her termination and claims of wrongful dismissal are tied to her substance use. N.B. will also need to provide information regarding her mitigation efforts, including records of her post-termination cleaning business, with client details redacted to protect their privacy.
Background to the case
The dispute centres on N.B.’s dismissal following a positive drug test for cocaine. According to court documents, N.B. experienced a traumatic event in March 2022, during which she was kidnapped, robbed, and drugged. She missed several days of work due to the incident and was later sent home from work after Bombardier claimed she smelled of alcohol. Following a positive drug test in May 2022, her employment was terminated.
N.B. claims her dismissal was wrongful and is seeking damages, including compensation for lost wages, benefits, and pension contributions. Her statement of claim also alleges that Bombardier discriminated against her by failing to accommodate her disability, which she says includes a substance use disorder related to the March 2022 incident.
Bombardier denies these allegations, asserting that her termination was justified based on her violation of company policies and her dishonesty about her substance use.
Next steps in the case
With the medical examination and discovery questions now ordered, the case is set to proceed to trial in February 2025. The trial, which was initially scheduled for November 2024, has been delayed to allow for the completion of the IME and the potential submission of expert reports.
Justice Wojciechowski will serve as the trial management judge, overseeing the case as it moves toward resolution. A pre-trial hearing is scheduled for December 2024, with both parties expected to attend.
For more information, see Barrette v. Bombardier Transportation Canada, 2024 ONSC 4886 (CanLII).
