In wrongful dismissal lawsuits, the former employee’s medical condition can sometimes become an issue for the Court to consider. To what extent can the employer test this medical condition through a Court-ordered independent medical examination of the employee?
Examples of When a Medical Condition Could Be a Potential Issue
Claims for Moral Damages and/or Aggravated Damages
An employee’s medical condition can be at issue, for example, in relation to a claim for moral damages or aggravated damages, in which the employee alleges that they suffered mental distress as a consequence of bad faith conduct by the employer in the course of termination.
Failure to Mitigate Damages
Another example could occur when an employee alleges they were unable to mitigate their damages by finding new employment, and they claim this failure is a result of a mental or physical health condition which impeded their job search efforts.
Independent Medical Examinations
Rule 33 of the Rules of Civil Procedure provides that a motion can be brought for an order requiring the medical examination of a party “whose physical or mental condition is in question in a proceeding”.
If such an order is made, then a health practitioner will examine the party alone, and will then prepare a written report setting out:
- their observations;
- the results of any tests made;
- their conclusions, including diagnosis and prognosis; and
this written report is then provided to every party involved in the proceeding.
Despite this Rule, it is not easy to obtain an order for an independent medical examination. Although it is far more common in personal injury lawsuits, it is unusual for the Court to order an independent medical examination in a wrongful dismissal case.
Many employers believe they have the right to force an employee to undergo an independent medical examination to support a medical leave or other accommodation. However, the reality is that it is very difficult to require an independent medical examination in the absence of unusual circumstances.
Marshall v. Mercantile Exchange Corporation
In the recent decision of Marshall v. Mercantile Exchange Corporation, the Court took the unusual step of ordering an independent medical examination of a former employee in a wrongful dismissal case.
In that case, the plaintiff Lyndon Marshall was dismissed after 25 years of employment. He sued the employer for wrongful dismissal, claiming that he was entitled to a notice period of 26 months.
In the 9 months between the dismissal and the hearing of the motion, Mr. Marshall took no steps to find alternative employment because he alleges that he suffered from stress and depression arising out of his termination, which prevented him obtaining new employment. Mr. Marshall also took the position that his mental condition would continue to prevent him from mitigating his damages in the future and until his condition was cured, which possibly would not be until after the end of the 26-month notice period that he was claiming.
The employer therefore brought a motion seeking an order for an independent medical examination, in order to test whether Mr. Marshall’s mental condition would prevent him from being able to seek new employment.
In considering the employer’s motion, Justice Koehnen cautioned that allowing medical examinations in wrongful dismissal actions for the purpose of assessing an inability to mitigate for mental health reasons could become a weapon for employers. However, Justice Koehnen found that since Mr. Marshall claimed he has no duty to mitigate for up to 26 months because of a mental health condition, it would be unfair to allow him to make that assertion without having it tested.
Accordingly, Justice Koehnen found that in the circumstances of the case, if Mr. Marshall took the position that he was unable to mitigate after 12 months have passed and as a result of his mental condition, he should be required to submit to an independent medical examination. This was an attempt to find a balance between giving an employer the right to test allegations of inability to mitigate, without allowing employers to abuse independent medical examinations as a tactic to dissuade plaintiffs from legitimately relying on medical issues.
Conclusion
It should be noted that the circumstances in the Marshall case are somewhat unique, and the decision will not necessarily open the door to further orders for independent medical examinations in wrongful dismissal cases.
The Court noted that it is “unusual to order an independent medical examination in a wrongful dismissal case”, and that there were “somewhat unusual circumstances” in the case that made it appropriate to do so. Moreover, the Marshall decision has not yet been followed by other Court decisions or tested by appellant authority.
If you are an employer or an employee that is a party to a lawsuit in which the employee’s physical or mental condition is in question, we can help you navigate how to test evidence of the condition, including in rare cases, requests for an independent medical examination.
If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.
