The Ontario Court of Appeal has confirmed that in certain circumstances, it is reasonable for an employer to demand an Independent Medical Examination (“IME”) to determine whether an employee needs accommodation and if so, how. In August 2017, the Court denied leave to appeal the Divisional Court’s decision that found the employer was justified in requesting an IME as part of the process of accommodation.

Background

The Applicant, Marcello Bottiglia (“Bottiglia”), worked for the Ottawa Catholic School Board (the “OCSB”) for 35 years. He began as a teacher and worked his way up to become Superintendent of Schools.

In 2010, the OCSB appointed a new Director of Education. Bottiglia was interested in applying for that position and was upset to learn that the OCSB relied on an appointment process rather than holding an open competition. Shortly after, he went on sick leave and was diagnosed as suffering from a unipolar depressive disorder with anxiety features. Bottiglia claimed that his depression was caused by his disappointment towards the unfair process that was used to select a new Director.

Request for accommodation

For two years Bottiglia provided the OCSB with medical information which stated that he was unable to return to work. In June of 2012, he provided the OCSB with correspondence from his psychiatrist which stated that his condition was resistant to treatment, that a return to work could result in a relapse and that he required an extended period off work. Somewhat surprisingly, two months later, Bottiglia provided the OCSB with further correspondence from his psychiatrist which stated that he was ready to return to work, albeit with restrictions. Notably, this coincided with the end of Bottiglia’s entitlement to paid leave.

The restrictions that were allegedly required included a modified schedule of four hours per day, two days per week over a six to twelve month period. The psychiatrist also indicated that Bottiglia might never be able to return to a full-time capacity.

The OCSB asserted that the requested accommodation was unworkable due to the demanding nature of the Superintendent position and that the psychiatrist was recommending accommodation without an objective understanding of Bottiglia’s workplace or the essential duties of a Superintendent, which had changed since Bottiglia went on leave.

The OCSB was also cautious about the psychiatrist’s sudden about-face and the timing thereof. As such, they determined that an IME would be necessary. Bottiglia refused to submit to the IME.

Application to the Ontario Human Rights Tribunal (the “Tribunal”)

Bottiglia brought an application to the Tribunal alleging that the OCSB improperly required that he attend an IME before he could be allowed to return to work and therefore breached its duty to accommodate him.

The Tribunal dismissed the application, finding that after receiving conflicting recommendations from Bottiglia’s psychiatrist, it was reasonable for the OCSB to require additional information about his medical condition, prognosis, restrictions and potential accommodations and that it was reasonable to require an IME to obtain this information.

Appeal to the Ontario Divisional Court (the “Court”)

The Court upheld the Tribunal’s decision and confirmed that in certain circumstances,  employers are justified in requesting IMEs as part of their duty to accommodate under the Ontario Human Rights Code (the “Code).

The Court added that before requesting an IME, an employer should carefully consider whether asking for additional information or clarification from the employee’s treating physician would be more sufficient. This is especially important where the information provided is inadequate, but there is no reason to believe that the treating physician is misinformed or unreliable.

Appeal to the Ontario Court of Appeal

The Ontario Court of Appeal dismissed the motion for leave to appeal without providing reasons.

Takeaways for employers

The Court found that the duty imposed on employers by section 17(2) of the Code gives them the right, in certain circumstances, to ask for an IME. This does not mean that an employer has a right to request an IME at any time, or that an employee must automatically submit to one as part of the accommodation request. Rather, the Court held that an IME is appropriate where the employer has reasonable and bona fide grounds to question the adequacy and reliability of the information provided by the employee’s treating physician.

If an IME is warranted, employers should be cautious in how they communicate with the independent medical examiner. They may provide relevant information about the circumstances but should be careful not to provide irrelevant information that might impair the objectivity of the independent examiner. If they do so, the employee will be justified in refusing to attend the IME. Employers should, therefore, limit their communication to information about the nature of the employment, and the events leading to the employee’s absence.

Takeaway for employees

The Court’s decision does not mean that an employee must agree to an IME as part of their request for accommodation. Neither does it give employers an automatic and unrestricted right to demand an IME. Rather, in certain circumstances, an employer will be justified in asking an employee to attend an IME as part of its duty to accommodate.

Employees can counteract the need for an IME by providing adequate and clear information from their treating physician, along with a reasonable accommodation plan specifically tailored to their position.