Canada: Dealing With Employees Who Deny Unfitness To Work

A roadmap for dealing with disabled employees who are unfit for active employment, but who deny being unfit, is detailed in Kelfor Industries Ltd. v. United Steelworkers, Local 2009 ([Grievor] Medical Leave and Termination Grievances) (November 21, 2017 – unreported at time of writing) (Lanyon).


The Grievor was a long-service employee who performed a variety of jobs in a safety-sensitive lumber drying business. In recent years, his absenteeism rate increased, he became belligerent and insubordinate, and he was seen sleeping at work. In April 2016, the Grievor left work without permission, claiming that he needed to see a doctor. The Employer reviewed the Grievor's employment file, which included WCB disclosure material and other medical information, and became seriously concerned that the Grievor may not be medically fit for active employment.

The Employer placed the Grievor on a mandatory medical leave until he could provide a clear, current and credible medical opinion declaring his fitness to return to work. A short time later, the Grievor provided a doctor's letter to the Employer that he hoped would get him back to work. However, the Employer concluded that this letter was insufficient. It wrote to the Grievor to ask that his doctor answer specific questions so it could understand whether the Grievor could return to safe and productive active employment with or without a workplace accommodation.

From the lengthy correspondence that followed, the Employer concluded that the Grievor's own doctors were unable or unwilling to provide the information required so it offered to arrange and pay for an independent medical examination ("IME"). It warned the Grievor that if he chose not to participate in the IME, his employment would be terminated on non-culpable grounds. The Grievor ultimately refused to participate fully in the IME and, as a result, the Employer terminated his employment.

Argument and Decision

The Union grieved the Grievor's mandatory medical leave, the Employer's requirement that he submit to an IME, and the Grievor's dismissal for refusing to participate fully in the IME. It argued that the letters from the Grievor's doctors were sufficient to clear the Grievor's return to work and that the Employer had no grounds to insist on an IME. Arbitrator Stan Lanyon, Q.C. dismissed the Union's arguments and upheld the Grievor's dismissal.

Mandatory Medical Leave

Arbitrator Lanyon recognized the Employer's statutory requirement to maintain a safe workplace and held that it had reason to be concerned about the Grievor's fitness for work. As such, it was reasonable for the Employer to withhold him from active service pending receipt of additional medical information:

I conclude that based on the WCB medical information and reports, the Orion Health Report, and the Grievor's conduct, it was reasonable for the Employer to require further medical information from the Grievor in order to determine his fitness to return to work, and to hold him out of service on medical leave until then.

Required IME

The arbitrator noted the conflicts in the medical information that the Grievor gave to the Employer and recognized that much of it was based on the Grievor's unreliable self-reports. He held that it was reasonable for the Employer to require the Grievor to fully participate in an IME rather than ask the Grievor's own doctor or doctors to attempt to reconcile the conflicts:

I conclude that it was reasonable for the Employer not to go back to Dr. Lakher, the Grievor's family physician, to resolve the differences between his report, and the physician records of the Grievor's former family doctor, Dr. Vanbuuren. It was also appropriate for the Employer to seek an IME that would include blood and urine samples, as well as a Pharmanet search, in order to determine the Grievor's fitness to return to work.


An Independent Medical Examination was the only reasonable and objective way to resolve this contradictory medical evidence.

Non-Culpable Termination

The arbitrator accepted that once the Grievor refused to participate in the IME, the Employer was entitled to terminate his employment on non-culpable grounds. Although employers cannot discipline employees who refuse to consent to medical examinations, their employment can be terminated, on a non-culpable basis, if they refuse to provide medical information to establish their fitness to return to active employment in the foreseeable future with or without a workplace accommodation:

I conclude that the Employer, when faced with the Grievor's refusal to undergo an IME, had no ability to determine if the Grievor was fit for work, with or without limitations, for the foreseeable future. Absent such information the termination was justified. His dismissal was therefore not disciplinary but rather based on non-culpable grounds; that is, the fact that the Grievor elected to not provide medical evidence that he was fit to return to work safely in the foreseeable future.


I further conclude that the Employer was properly attentive to the issues of the Grievor's privacy in this case. The Employer, throughout its correspondence, repeatedly stated that it would keep all medical information confidential. Further, no issue of accommodation arose in these circumstances because the Grievor refused to undergo a medical examination.

Lessons for Employers

  • Cases like this are challenging. Employers must be mindful of the applicable statutory, privacy and human rights principles. The detailed correspondence reproduced in this decision provides a useful roadmap for how this type of situation can be successfully managed.
  • If employers have a reasonable concern about the ability of an employee to safely and productively work, they have a statutory duty to withhold the employee from active service pending receipt of a clear, current and credible medical opinion in support of his or her active employment.
  • When employers are presented with insufficient or contradictory medical information from an employee's own doctors, it may be appropriate to require the employee to participate in an IME.
  • Employees who refuse to participate fully in a reasonable IME are subject to dismissal on non-culpable grounds.

Originally published in the LexisNexis Labour Notes Newsletter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
18 Oct 2018, Seminar, Vancouver, Canada

Recognizing and managing mental health issues in the workplace can be one of the most challenging human resources issues facing employers.

25 Oct 2018, Seminar, Vancouver, Canada

New privacy requirements come into force on November 1, 2018. Organizations that are subject to the federal Personal Information and Protection of Privacy Act will be required to comply with a new mandatory breach reporting regime.

6 Nov 2018, Webinar, Vancouver, Canada

This always-popular webinar is our annual update of some of the key arbitration decisions issued in the previous year.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions