In Marshall v Mercantile Exchange Corporation [Marshall], the Ontario Superior Court of Justice recently examined whether a former employee could be required to undergo an independent medical examination after claiming to be unable to mitigate damages resulting from the termination of their employment, due to mental health concerns.

Facts

The former employee sued the employer for wrongful dismissal, claiming entitlement to 26 months’ notice after his employment was terminated following 25 years of service. In the nine months following the termination, the employee did not mitigate his damages by seeking alternative employment, citing stress and depression from the termination as the reasons for his inability to do so. The employer responded by bringing a motion seeking an independent medical examination under civil procedure rules, which permit such examinations when a party’s mental or physical condition is in question.

The employee contended that his mental health was not the basis for the damages he sought and argued that there was insufficient justification for an independent medical examination. He further expressed concerns that allowing medical examinations in wrongful dismissal cases could be misused by employers to discourage employees from citing legitimate mental health issues as reasons for their inability to mitigate damages.

Decision

The Court acknowledged circumstances where employees might genuinely be unable to mitigate damages due to mental health conditions. However, the Court recognized that it would be unfair to allow employees to make unfettered claims that they had no duty to mitigate because of a mental health or medical concern. The Court further held that the employee had brought his mental condition into question by asserting that he had no obligation to mitigate during the nine months between the termination of his employment and the hearing, and by claiming that his inability to mitigate would continue for the entire 26 month notice period.

Ultimately, in balancing the right of employers to question employees’ inability to mitigate and preventing employers from abusing the use of requiring independent medical examinations for medical issues, the Court held that if an employee claims an inability to mitigate after 12 months, they should be prepared to undergo an independent medical examination.

Takeaways for Employers

The decision in Marshall clarifies that while employees may assert that mental health issues prevent them from mitigating damages by seeking alternate employment after dismissal, employers have the right to request an employee undergo a medical examination to prove this claim. Specifically, after 12 months, an employer can require employees to undergo an independent medical examination to verify the legitimacy of their medical concern that the employee claims is preventing them from mitigating.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.