In Krmpotic v. Thunder Bay Electronics Limited (Ont CA, 2024) the Ontario Court of Appeal considered evidence of disability, particularly whether medical evidence is necessary:
[24] The appellants assert that the trial judge’s finding of physical incapacity was an error in principle because it was made in the absence of medical evidence to that effect. They rely on two cases for this assertion: Lemesani v. Lowery’s Inc., 2017 ONSC 1808, aff’d on other grounds 2018 ONCA 270; and Sinnathamby v. The Chesterfield Shop Ltd., 2016 ONSC 6966.
[25] I do not see these cases as establishing the general principle that physical incapacity can only be established by expert medical evidence. In any event, Lemesani and Sinnathamby are readily distinguishable from the present case. In Lemesani and Sinnathamby, the claims related to non-physical injuries that were unsupported by any evidence. In the present case, the claims relate to physical injuries for which there was evidence. Mr. Krmpotic’s medical history included numerous back and knee problems, and four different back injuries sustained at work, ultimately resulting in the need for back surgery. Mr. Krmpotic’s evidence on his physical limitations was supported by the evidence of his wife and son. And all of this was buttressed by the evidence of Mr. Krmpotic’s attempt at re-employment in November 2017 which failed due to physical incapacity.
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