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Doctor’s note not always a ticket to a successful human rights claim

When I was in high school and university, it was not uncommon for a few of my classmates to fall ill during exams or just prior to a major test. When explaining to the teacher the next day why they were not present to write the test, one of the more common responses from the teacher would be, “Bring a doctor’s note.”

If unable to produce a doctor’s note, your illness may be viewed as suspect—as if someone would fake an illness to miss an exam! However, with a doctor’s note which confirmed your illness, you were permitted to write the exam at a later date.

A doctor’s note, however, does not always mean you will get your way. Mr. Sells realized this when he commenced a claim for discrimination based on disability in the workplace at the Human Rights Tribunal of Ontario. You can find the decision here.

A few years ago, Mr. Sells was a teacher at the Kawartha Pine Ridge District School Board. Unfortunately, while working as a teacher, he encountered some health difficulties – it had been determined by a doctor that he had an eye condition that required surgery. On the recommendation of his doctor, Mr. Sells took medical leave part way through the school year. Shortly thereafter, it became clear that he would be unable to return to teach for the rest of the school year due to his condition.

Mr. Sells’ grade 8 class, however, was scheduled to go to Ottawa on a field trip in late June. His students also had their graduation ceremony scheduled for June. Despite his condition and the fact that he was on medical leave, Mr. Sells wanted to attend both events and provided a doctor’s note stating that although he was not fit to resume his teaching duties, he was able to participate in the field trip to Ottawa and the graduation ceremony.

The principal of the school and the school board’s human resources manager, however, decided that because he was on medical leave he should not be permitted to go on the field trip. With regard to the graduation ceremony, Mr. Sells was welcome to attend, however, not allowed on stage as there were concerns about him going up and down the stairs with his condition. Needless to say, Mr. Sells was not pleased with either of these decisions and applied to the Human Rights Tribunal of Ontario (the “Tribunal”) noting that a “duty to accommodate was triggered when [he]…provided a note from his doctor stating that [he]… was medically capable of going on the trip.”

In explaining its decision that the school board did not discriminate against Mr. Sells, the Tribunal noted that the medical information given by Mr. Sells, i.e., the doctor’s note, “does not necessarily in itself resolve the accommodation process.” The Tribunal went on to conclude that, “The person’s doctor is not generally in a position to know whether a person can perform the essential duties of a particular job, or the other considerations that the employer may have to take into account” and that, “an employer is not required to simply accept a doctor’s opinion about how the accommodation can be best accomplished.”

In other words, while a doctor’s note may result in permission to write an exam at a later date, it will not necessarily guarantee you success when pursuing a discrimination claim based on disability.

By Marty Rabinovitch and Anthony-George D’Andrea, Student-at-Law

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Devry Smith Frank LLP

Employment and labour lawyers at Devry Smith Frank LLP
Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .
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