Ontario courts recognize that employees experiencing depression, anxiety, or other mental health challenges after a wrongful dismissal may be temporarily unable to search for new work. During this recovery period, an employee may not be required to mitigate their damages by immediately beginning a job search.
But what happens when an employee claims that their mental health prevents them from mitigating for much longer, potentially throughout their entire notice period? In M. v. Mercantile Exchange Corporation, 2024 CanLII 71128 (ON SC), the Ontario Superior Court considered when an employee relying on an extended inability to mitigate may be required to attend an independent medical examination.
Background
The plaintiff worked as a courier for the defendant for just over 25 years. He was 58 years old at the time of his dismissal and earned approximately $52,000 per year. His employment ended in October 2023 after the defendant closed its internal delivery department. The plaintiff received 11 weeks of working notice followed by approximately six months’ salary in lieu of notice.
The plaintiff brought a wrongful dismissal claim and argued that he was entitled to 26 months’ notice. He also maintained that stress and depression arising from the termination had prevented him from searching for new work during the nine months following his dismissal. His position was that this inability could continue indefinitely, potentially throughout the entire notice period he was claiming.
The defendant asked the court to order the plaintiff to attend an independent medical examination, commonly called an IME. The request was made under section 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure, which permit a court to order a physical or mental examination when a party’s condition is in question.
What Did the Court Decide?
Mental health can justify delaying a job search
The court recognized that employees may experience significant mental health challenges after losing their jobs. Ontario courts have previously accepted that depression, anxiety, and the emotional effects of dismissal can temporarily prevent an employee from searching for alternative employment.
The court accepted that the plaintiff’s position had support in existing case law. It also emphasized that it was not suggesting that the plaintiff was exaggerating or fabricating his mental health condition. The issue was whether the defendant should be permitted to independently assess a claim that the plaintiff could not mitigate for an extended and potentially indefinite period.
An extended inability to mitigate may require further evidence
The court found that claiming a complete inability to mitigate for as long as 26 months went beyond the usual adjustment period courts may allow employees following a dismissal. After reviewing previous decisions, the court observed that the longest period during which an employee had been excused from mitigating because of a mental health condition was 12 months.
The court also considered the circumstances surrounding the plaintiff’s employment. It noted the potential availability of comparable work and concluded that it would be unfair to allow an extended claim of inability to mitigate without giving the defendant an opportunity to test that claim.
The court applied a 12-month threshold
Rather than requiring the plaintiff to attend an IME immediately, the court took a middle-ground approach. It held that the plaintiff would be required to attend an examination if he continued to claim that he was unable to mitigate after 12 months had passed from the date of his dismissal.
This approach was intended to balance the employee’s ability to rely on a genuine medical condition against the defendant’s right to assess a claim that could substantially affect the outcome of the wrongful dismissal case.
Independent medical examinations are not automatic
The court recognized the plaintiff’s concern that requests for IMEs could be used as a litigation tactic to pressure employees or discourage them from relying on legitimate health barriers. The decision does not mean that an IME will automatically be ordered whenever an employee reports depression, anxiety, or stress after being dismissed.
Instead, the court must consider the particular facts of the case, including how long the employee claims to have been unable to mitigate, the evidence supporting that position, and whether an examination is necessary to fairly assess the claim.
Key Takeaways for Employees
- Mental health may be a legitimate barrier to mitigation. Depression, anxiety, stress, and other health concerns following a dismissal may temporarily prevent an employee from searching for new work. Whether an employee is required to begin a job search will depend on their condition and the available evidence.
- An extended inability to mitigate may receive greater scrutiny. When an employee claims that they cannot search for work for more than 12 months, a court may require stronger medical evidence or order an independent medical examination.
- Independent medical examinations are not automatically available. A defendant cannot require an IME simply because an employee refers to a mental health condition. The court must be satisfied that the employee’s condition is genuinely in question and that the circumstances justify an examination.
- Medical documentation may be important. Employees experiencing mental health challenges after a dismissal should consider seeking appropriate professional care. Medical records may help explain how the condition affects the employee’s ability to work or search for new employment.
- Long service and age may affect reasonable notice. The plaintiff’s age and more than 25 years of service were relevant to his claim for an extended notice period. Courts also consider factors such as the employee’s position and the availability of comparable employment.
Get Advice About Your Rights After a Dismissal
If you have been dismissed and mental health challenges are affecting your ability to search for new work, it is important to understand how your health, mitigation obligations, and wrongful dismissal claim may intersect.
Contact Monkhouse Law today for a free 30-minute phone consultation with an Ontario employment lawyer.