I Want A Second Opinion: When Can Employers Require An Independent Medical Examination?

Author:Ms Laurie Jessome
Profession:Cassels Brock

Many employers have found themselves in a situation where their employee has provided a medical note or doctor's recommendation that doesn't seem quite right.  But how do you investigate further without invading your employee's privacy and without breaching your duty to accommodate under the Ontario Human Rights Code (the "Code")?  A recent decision of the Ontario Divisional Court, Bottiglia v. Ottawa Catholic School Board and the Human Rights Tribunal of Ontario 2017 ONSC 2517 ("Bottiglia") provides some helpful guidance.

In Bottiglia, the Divisional Court was asked to review a decision by the Human Rights Tribunal of Ontario (the "HRTO") to dismiss an application by Mr. Bottiglia alleging that he had been discriminated against by his former employer, the Ottawa Catholic School Board (the "OCSB").  Mr. Bottiglia resigned from his employment after the OCSB required that he attend an independent medical examination ("IME") as a condition of any return to work.  At the time of the request, Mr. Bottiglia had been on a leave of absence for approximately two years.  Throughout his leave, his treating physician had maintained that Mr. Bottiglia was completely disabled, that his condition was "treatment resistant" and that any return to work would likely cause Mr. Bottiglia's condition to worsen.  The last such update was provided to the OCSB in March of 2012.  In August of 2012, the same doctor recommended a return to work on the following schedule: 4 hours a day, 2 days a week, with no evening meetings permitted.  The doctor further advised that this work hardening schedule would need to be in place for 6 to 12 months and that a return to full time status in that time period was not likely.

The OCSB had a few reasons to be concerned about this recommendation.  First, there was no explanation whatsoever for the sudden change in Mr. Bottiglia's condition.  In March, his doctor believed that a return to work would be harmful to Mr. Bottiglia.  Only a few months later, he was recommending that Mr. Bottiglia return to the workplace.  The HRTO found that this change was "significant and unexpected".  The OCSB was also concerned because of the extremely limited scope of Mr. Bottiglia's proposed hours, which it believed was inconsistent with the nature of his job as a school superintendent and  reflected a very tentative and uncertain prognosis for Mr. Bottiglia.  The OCSB also had another reason to doubt the bona fides of Mr. Bottiglia's return to work...

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