This recent decision appears to be a first of its kind, at least in Ontario, where a fired employee advancing a wrongful dismissal claim against their former employer was ordered to undergo a defence medical examination.
Section 105(2) of the Ontario Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”) empowers the court to order a party to undergo a physical or mental examination by one or more health practitioners if the court is satisfied that “the physical or mental condition of a party to a proceeding is in question.” These types of medical examinations are colloquially referred to as “defence medical examinations” because they are often sought by defendants who are seeking to have the plaintiff medically assessed, even though a plaintiff could, in rare circumstances, seek to have a defendant medically examined.
Defence medical examinations are routinely done in personal injury lawsuits, but not in wrongful dismissal cases. The door was opened in this case because of the position taken by the employee plaintiff: namely, that the stress and depression arising out of his termination prevented him from looking for other work over the full duration of the 26 month notice period he was asserting in his wrongful dismissal claim. Put another way, the plaintiff was raising his medical condition as a complete shield against the Defendant employer’s “failure to mitigate” defence.
The court correctly pointed out that Plaintiff brought his mental condition into question, thereby triggering the application of section 105(2) of the CJA. The problem, however, is that it is very common for fired employees to go through a period of anxiety, depression, stress, etc, after being fired or let-go. Obviously everyone is different: some individuals can overcome these feelings within a few hours after being let-go (such that it is never an issue), and others may genuinely be in a state of disarray for weeks or months, in which case it often becomes a live issue for the court to determine how much job-search delay is reasonable, given the facts of the case.
The more important question, however, is when does a defendant employer get the right to challenge the alleged depression/stress/anxiety through a defence medical examination? In pure theory, the right to test the veracity of any stress related delays in searching for new employment should arise the moment it is raised by the employee. It is at that point that the plaintiff’s medical condition is drawn into question because it impacts the damage assessment of the case.
The judge rightfully recognized that a carte blanche right to have a terminated employee medically examined the moment they seek to use post-firing stress to explain-away delays in looking for replacement work could “become a weapon for employers.” But equally, and not stated by the judge, allowing employees to rely on post-firing stress to relax their duty to mitigate can also be abused by employees, especially if there is no threat of this position being challenged through a medical opinion obtained through a defence medical examination.
In what the judge described as “striking a balance,” an artificial twelve month threshold was used, which the judge asserted was “the longest time period in which mitigation was not required:” citing the cases of Reid v. Stratford General Hospital, [2007] O.J. No. 5144 and Rothenberg v. Rogers Media Inc., [2020] O.J. No. 4155. Using the judge’s words:
“It strikes me that in the circumstances of this case, if the plaintiff takes the position that he is unable to mitigate after 12 months have passed, he should be required to submit to an independent medical examination. That strikes me as a fair 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 that prevent them from mitigating damages.”
It will be interesting to see whether this artificial twelve-month threshold endures over time. Litigants who commence personal injury lawsuits know full well that by raising their medical condition to promote their damage claim they are subjecting themselves to the prospect of being medically examined by doctors retained by the alleged tortfeasor. The question remains whether there a juridical reason to treat employees in wrongful dismissal lawsuits any differently when they too rely on their medical condition to promote their damage claim. On the face, treating them differently is arguably disingenuous and artificial. Remember, the dismissed employee is not forced to assert that they have a medical condition that precludes them from post-termination job searching. If they chose to take that position, however, should it not be capable of being tested through the rigours of cross-examination and competing medical opinion?
The practical reality is that in most cases, the demand (or need) for defence medical examinations in the context of wrongful dismissal litigation will be the exception rather than the norm, and even in circumstances where the job search delay based on medical reasons is getting a little long-in-the-tooth, the economics of most cases would rarely warrant or justify the time and expense of a defence medical examination. This being said, however, creating a one-year threshold is arguably unsustainable because there may be a situation where there is a financial need to vet the issue through a defence medical examination much sooner: say, for example, a situation with a very high wage earner where every month of delay could effectively represent tens, if not hundreds, of thousands of dollars in accruing damages. An employer faced with this level of exposure should be able to test the veracity of the alleged post-termination stress/depression early on, and not have to wait for twelve-months.
But from a practical perspective, defence medicals are not apt to become commonplace in wrongful dismissal claims, mainly because of timing considerations. First, employees have two years to sue for wrongful dismissal, and given that notice periods are roughly capped at two years, an employee could delay the start of the lawsuit to shield themselves from a defence medical, or at least make any after-the-fact defence medical of questionable value. Second, even for lawsuits commenced immediately, generally the length of the stress related “impairment” is unknown, which militates against rushing out to get defence medicals. As such, it may very well be the case that defence medicals in wrongful dismissal cases will be limited to those situations like the one before the court where the dismissed employee takes the position, early on, that they will never to able to search for new employment over the entire course of the alleged lengthy notice period due to termination related stress/depression, or perhaps in situations where there is a high wage earner whose potential monthly losses are significant, thereby making financially viable (and perhaps advisable) to immediately vet the medical situation at a very early stage.
It will be very interesting to see how this area of the law develops, and more particularly, to see if there is a burgeoning demand for defence medicals in wrongful dismissal lawsuits, and if so, to see how the courts grapple with the boundaries. On the one extreme would be to uphold an artificial time frame of twelve (12) months, and on the other extreme would be to permit defence medicals at any time the employee asserts that their duty to mitigate ought to be suspended due to a physical or mental condition, and thereafter address any potential abuse by the employer through some manner of punitive award (ie: increased legal costs and/or damages).
Marshall v. Mercantile Exchange Corporation, 2024 CanLII 71128 (ON SC)
https://www.canlii.org/en/on/onsc/doc/2024/2024canlii71128/2024canlii71128.html