Back in December 2015, I wrote a blog post on a recent Human Rights Tribunal of Ontario decision in Bottiglia v. Ottawa Catholic School Board. The case concerned the ability of an employer to demand an Independent Medical Exam in circumstances where there was no clear contractual or express statutory authority. The HRTO ruled that the Employer had the ability to request an IME when the medical evidence was contradictory under the Employer’s management guidelines for accommodation and/or the statutory duty to accommodate under the Ontario Human Rights Code.
The Employee recently appealed the HRTO’s decision and the Ontario Divisional Court has released its case confirming the ability of an employer to demand an IME under the Ontario Human Rights Code in Bottiglia v. Ottawa Catholic School Board 2017 ONSC 2417.
In this case, the employee was on a disability absence from the workplace for “stress” after he had been passed over for a promotion. The employee’s doctor submitted medical suggesting his patient was completely incapacitated and would be off for a considerable period of time. However, when the employee’s sick leave benefits were coming to an end, his doctor then provided a medical stating he could return to work almost immediately.
The employer obviously was stunned by the sudden turn in the employee’s medical condition. The employer therefore demanded an IME to assess the employees medical condition to determine if the employee could in fact return. The employee initially agreed. However, when the employer sent a letter to the IME doctor, the employer made a number of comments about the employee’s illness and motivation for wanting to return to work because he was running out of sick benefits. The employee then retracted his consent to undergo the IME and refused to participate in an IME. The accommodation process was brought to a standstill.
As mentioned, the HRTO concluded that in light of the conflicting medical, the employer was justified in requesting an IME based on the employer’s management guidelines and the statutory duty to accommodate under the Human Rights Code. The employee appealed this decision on the basis there was no contractual authority for an IME and there was no express statutory authority to require an IME.
The Ontario Divisional court dismissed the employees appeal and in doing so made the following comments:
- The HRTO had erred in concluding that the employers management guides provided contractual authority to demand an IME. Upon review, the Court concluded there was nothing precise enough that the employee had contractually agreed to that would entitled the employer to demand an IME.
- The Court then rejected the employee’s argument that statutory authority had to be “expressly authorized by statute” for the specific circumstance in which an IME was requested. Rather, the Court held that section 17(2) of the Human Rights Code, which codifies an employer’s obligation to accommodate an employee to the point of undue hardship required employers to accommodate and therefore provided the employer with the statutory authority to request an IME when the facts warranted it. Given the conflicting medical evidence from the employee’s own doctor, an IME was justified.
- The Court also commented that an employer, in its communications with the IME doctor, had to remain objective and refrain from offering opinions / comments to influence the outcome of the IME. However, the Court held that the HRTO was not incorrect to conclude that the employer’s comments were not inappropriate.
This is a key decision for all employers in the duty to accommodate. It confirms that the Human Rights Code offers statutory authority to demand an IME where the facts warrant it (for example, in the case of conflicting medical evidence). It also highlights the need for employment contracts to provide the contractual authority for an IME. Finally, it cautions employers to exercise any request for an IME objectively and to refrain from trying to influence the outcome of the process.
Simon Heath, BA, MIR, LLB, Heath Law
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Sean, thanks for letting us know. We will sure be on the lookout for any developments. Yosie
For what it is worth, leave to appeal has been sought from the Court of Appeal for Ontario. The Divisional Court may not be the last word on this subject.