In the recent decision of Barrette v. Bombardier Transportation Canada, the Ontario Superior Court of Justice granted a request by the employer to compel a former employee to undergo an independent medical examination (“IME”). This decision comes only a few months after an IME was ordered in the context of another wrongful dismissal case, Marshall v. Mercantile Exchange Corporation.
We recently wrote about the Marshall decision and considered the rare circumstances in which a court will order that an employee be subjected to an IME. As noted in detail in our previous post, Rule 33 of the Rules of Civil Procedure, and s. 105 of the Courts of Justice Act, provide 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”.
While such orders are more common in personal injury lawsuits, we have rarely seen them ordered in the context of wrongful dismissal cases. However, there are circumstances in which a former employee’s physical or mental condition will be made directly relevant to the action based on the allegations in their claim, including with respect to claims for moral or aggravated damages, or claims about a former employee’s (often lack of) ability to mitigate their damages.
The latter was the case in Marshall where, as we wrote about in our earlier post, the plaintiff claimed that his mental condition prevented him from mitigating his damages for the foreseeable future. Although recognizing that such an order was unusual in a wrongful dismissal context, the court ultimately did order the IME given the extraordinary claim by the plaintiff that he would possibly be unable to take any steps to mitigate his damages for the entire 26 month notice period being claimed.
In Barrette, the employer had terminated the plaintiff’s employment for cause after she was asked to submit to a drug test which came back positive. In addition to the positive drug test, the plaintiff had been dishonest at the time the test was administered, denying that she had consumed any alcohol or drugs. She had only confirmed that she had used cocaine after work hours when confronted with the positive test.
She sued the employer claiming damages for wrongful dismissal, and also alleged that the employer had refused to accommodate her disability and had engaged in discriminatory conduct contrary to the Human Rights Code. In support of this claim, the plaintiff produced a letter from her treating physician which addressed her substance use disorder and the impact it had on her employment.
Following examinations for discovery, the employer brought a motion seeking, among other things, to have the plaintiff examined by a psychiatrist for the purposes of assessing whether the plaintiff had a disability as claimed, and, in particular, whether this would have prevented her from complying with the employer’s Drug and Alcohol Policy and/or responding honestly when questioned about her substance use prior to the drug test.
The court found that the physical or mental condition of the plaintiff was clearly engaged in the circumstances as a result of her claim that she was entitled to accommodation due to her substance use disorder. The court noted that the employer was “entitled, in response, to assess that position through examination by an expert”, and further commented that, given the letter from the plaintiff’s treating physician, it would be “unfair” to expect the employer to respond “without having its own expert spend time with [the plaintiff]“.
The court ultimately ordered the plaintiff to cooperate with arrangements to set up the IME to the extent that the purpose of same was to have the employer’s expert provide an opinion as to whether the plaintiff was suffering from substance use disorder, and the impact that might have had upon her employment.
Conclusion
As we cautioned previously, the facts in the Marshall decision were quite unique, and should not be viewed as “opening the floodgates” to IME orders in the context of most employment disputes. Although the circumstances in which the IME was ordered in Barrette are quite different from those in Marshall, the same commentary is applicable. Notably, the plaintiff had submitted her own expert evidence which the court recognized the employer was entitled to respond to in kind. Further, although the decision in this case did result in the trial date, originally set for November 2024, being pushed back to allow for the IME and any responding report from the plaintiff, litigation had already been quite expedited, having only been active for 17 months. The court expressly noted that it may have not granted the order sought if the litigation had been active for years instead of months.
In short, employers and employees should still consider the ordering of an IME an extraordinary result in the context of a wrongful dismissal claim.
As we noted in our last post, 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 don’t hesitate to contact us.
