By Kerry Ann Marcotte EMA, JD, BCL, BA, CWPI
Workplace investigations often unfold in complex circumstances. When the Responding Party to an investigation is on medical leave, and therefore unable to participate, employers find themselves navigating overlapping obligations under employment law, administrative law, and human rights law. The stakes are high: mishandling the process can taint the investigation, undermine fairness, trigger discrimination claims, and invalidate subsequent discipline.
Medical leave does not halt investigations, but it does shape them. Canadian case law provides important guidance, and this blog post explores the leading principles, drawing primarily from Canadian jurisprudence, that employers should have on their radar.
When An Employee is Medically Unfit to Participate, the Employer’s Obligations Expand
A Responding Party’s participation in a workplace investigation is not something that an employer can “opt out” of, as the Responding Party’s right to receive and respond to allegations that directly concern them is rooted in the principal of procedural fairness.
Courts have emphasized that parties must be given a fair opportunity to respond to information and evidence before decisions are made about them. The Federal Court in Marentette v. Canada (Attorney General) (2024)[1] reaffirmed this requirement in the investigative context.
Given these parameters, what should be expected from employers and parties when the Responding Party wishes to participate in an investigation, but is on medical leave and cannot actively engage in the investigation process for a specific or undetermined period of time?
An employee on leave can still be the subject of an investigation. But the employer must:
- respect medical limitations
- avoid actions that penalize the employee for being on leave
- ensure the employee is not deprived of the ability to respond
- avoid making final disciplinary findings until the employee can participate.
All of these obligations ensure the Responding Party’s rights are upheld and that the process will be procedurally fair.
Resuming an Investigation when a Respondent is on Medical Leave
There is no fixed timeline for waiting to resume an investigation when the Respondent is medically unfit. Instead, courts assess reasonableness, with context as the key factor. Below are some examples which provide guidance.
1. A reasonable delay is permitted
In Green v. Canada (Aboriginal Affairs and Northern Development)[2], a 27-month harassment investigation was upheld as reasonable due to:
- context & complex issues
- witness’ limited availability
- parties’ health issues, which limited their availability to participate
- difficulty securing a qualified investigator
The applicable policy required investigations to “normally” conclude in 12 months, giving flexibility for extenuating circumstances.
2. An employee cannot be compelled to participate when medically unfit.
In Canada, there is no authority that permits an employer to compel a medically unfit employee to participate in a harassment investigation if doing so would violate the employee’s accommodation rights.[3]
3. An employer can request an Independent Medical Examination (IME)
The Ontario Superior Court’s decision in Bottiglia v. Ottawa Catholic School Board (2017)[4] explains when an employer may request an IME, and that is:
- only when there is a bona fide reason to question the reliability or completeness of the employee’s medical information
- after first attempting to clarify matters with the employee’s own physician
This standard is designed to prevent employers from using IMEs as “fishing expeditions”.
Three Final Takeaways for Employers
- Do not make disciplinary findings until the respondent can participate as medical leave does not eliminate their right to procedural fairness.
- Reasonable delays are acceptable where health issues prevent participation, as long as the employer acts in good faith and keeps the process moving.
- Seek legal advice when navigating investigations involving medical leave, as errors can lead to liability for bad-faith conduct or discrimination.
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[1] Marentette v. Canada (Attorney General), 2024 FC 676
[2] Green v. Canada (Aboriginal Affairs and Northern Development), 2017 FC 1121 (F.C.).
[3] Canadian Human Rights Commission, Duty to Accommodate , retrieved from https://www.chrc-ccdp.gc.ca/individuals/human-rights/duty-accommodate?
[4] Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517 (Div. Ct.)
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