In Marshall v. Mercantile Exchange Corporation (2024 CanLII 71128 (ON SC)
https://canlii.ca/t/k62r7, Justice Koehnen has a situation where the Plaintiff was claiming 26 months notice but plead that they were unable to look for another job because of their medical condition.
The Defendant moved under 105 (2) of the Courts of Justice Act provides:
“Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”
In allowing the motion the Judge said :
11] The mental condition of the plaintiff has been put into question in this proceeding by the plaintiff’s own choice. The degree to which is mental condition has been put into question goes well beyond the usual adjustment period that courts afford plaintiffs to overcome the shock of dismissal before being obliged to mitigate their damages. At the moment, the plaintiff takes the position that he has had no obligation to mitigate for 9 months and that his inability to mitigate will continue into the indefinite future including up to the full 26 months notice he claims. This position arises in the context of relatively high employment and in the context of an income level which is not particularly high, and for which one might expect a significant number of jobs to exist.
[15] 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.
[16] None of that is to say that the plaintiff is not suffering from a condition that prevents him from mitigating. It is merely to say that if someone takes a position as unusual as the plaintiff is taking, they should be prepared to subject themselves to an independent medical examination in order to test the assertions they are making.
My Commentary:
This use of the IME by Defendants is routine in personal injury cases but is rarely used in employment cases. I have also seen this procedure used where the plaintiff has claimed damages for mental distress.
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