eCaseNote 2006 No. 09


Keays v. Honda Canada Inc., [2005] O.J. No. 1145 (OSCJ), [2006] O.J. No. 3891 (Ont.C.A.) Port Coquitlam (City) v. Canadian Union of Public Employees Local 498, [2005] B.C.C.A.A.A. No. 108

Employers are increasingly ordering Independent Medical Examinations (IME) to verify employees’ sick related absences. In certain circumstances, IMEs can be justified, as in the Port Coquitlam case, where the employer’s numerous requests for more information from the employee’s physician were not satisfied. However, employers should not always be so insistent in ordering IMEs in every case. In the Keays case, punitive damages were awarded as a result of an employer requiring an employee to consent to and partake in an IME.

In the Keays case, Keays developed Chronic Fatigue Syndrome and as a consequence was frequently absent from work. Honda advised Keays about a “special program available that exempted qualified associates from attendance-related progressive discipline based on a disability recognized by the Ontario Human Rights Code,” for which Keays immediately applied. However, this program required medical-related work absences to be validated by a doctor’s note. Honda further dictated that Keays see an occupational therapist who was hired by Honda as an Independent Medical Examiner, to verify if Keays’ work absences were justified. Keays did not meet with the therapist and as a consequence was dismissed.

The Ontario Superior Court of Justice ordered Honda to pay Keays $500,000 in punitive damages due to its mistreatment, and stated that it was “… satisfied that an award of punitive damages is a ‘rational’ and necessary response to Honda’s outrageous mistreatment of their long time employee.”

The Court explained that it was clear why Honda wanted Keays to see its therapist:

“Mr. Keays’ physicians were [purported by Honda to be] the problem because they would “certify” his absences like Sidney Crosby signs autographs after a hockey game. They were the villains because they perpetuated the myth that the plaintiff was required, by his illness, to be absent from work. He just hadn’t been “hardened” enough and Honda was the one to do it with the able assistance of their advocate of employers’ anti-absenteeism rights, Dr. Brennan. The subterfuge practice by everyone associated with Honda in attempting to intimidate him to seeing their occupational medicine specialist should make the blood boil of any right-thinking individual. This scheme was nothing less than a conspiracy to insinuate Dr. Brennan into the plaintiff’s long-established medical relationship with his own doctors, and, hopefully, to exclude them from any participation in advocating for his patient’s rights.”

On appeal, however, punitive damages were reduced from $500,000 to $100,000, stating that Honda’s conduct toward Keays “was sufficiently outrageous to warrant an award of punitive damages, [but] the award needs to be reconsidered.” The Court of Appeal overturned the trial judge’s findings on the duration and scale of the misconduct, holding that that the misconduct had lasted seven months and not five years and that the conduct was not as “harsh” or “unreasoning” as was stated by the trial judge.

The outcome of the Port Coquitlam case was the opposite of Keays. In this case, Dobby was dismissed from her employment as a regular part-time clerk at the City of Port Coquitlam due to her refusal to consent to an IME. Her employer had previously requested further medical information from Dobby’s physician on numerous occasions. However, her physician’s responses were deemed by her employer to be insufficient to substantiate her ongoing medical leave of absence from work. Therefore, Dobby was requested to consent to an IME in order to obtain sufficient information regarding the reasons for her lengthy and ongoing medical leave of absence from work. Dobby refused, as she did not agree that the IME should include investigations for drugs and alcohol and a diagnostic addictions interview.

Dobby was a union member, and her union filed a grievance on her behalf. The arbitrator found that Dobby’s refusal to consent to the IME was due to a mental disability that caused her to become paranoid when her employer requested the IME, and directed that her dismissal be set aside and her status as an employee on unpaid leave be reinstated. However, Dobby was ordered to consent to the IME since there were reasonable grounds to conduct one, given that the information supplied by her doctors was not fully responsive nor sufficient.

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