Canada: Employers May Be Justified In Requesting An Independent Medical Examination As Part Of The Procedural Aspect Of The Duty To Accommodate

Jurisprudence on independent medical examinations (IME) in the context of the employer's duty to accommodate is sparse.  The Ontario Superior Court of Justice recently provided much-needed guidance in Bottiglia v Ottawa Catholic School Board.  In Bottiglia, the Court held that in certain circumstances, an employer may be justified in requesting an IME as part of the duty to accommodate under the Ontario Human Rights Code (the Code).

The Facts

Marcello Bottiglia worked for the Ottawa Catholic School Board (School Board) from 1975 until he went on sick leave in April 2010.  At the time he went on sick leave, Mr. Bottiglia was being treated by his family doctor for anxiety and stress.  In May 2011, Mr. Bottiglia began to see a psychiatrist, Dr. Levine.

In a letter dated March 19, 2012, Dr. Levine opined that: (i) Mr. Bottiglia's condition had been relatively treatment resistant, (ii) Mr. Bottiglia required an extended period of time off work, and (iii) a return to Mr. Bottiglia's current workplace entailed a risk of relapse and the loss of the gains that Mr. Bottiglia had made to that date.  However, in a letter dated August 31, 2012, Dr. Levine indicated that Mr. Bottiglia was ready to return to work.

Concerned that Dr. Levine's August 2012 letter contradicted the March 2012 letter, the School Board eventually decided to seek a second, independent medical opinion.  Mr. Bottiglia refused the request for an IME.

In November 2012, Mr. Bottiglia commenced an application under the Code, in which he alleged that the School Board had discriminated against him by failing to accommodate him and return to work and subsequently resigned without ever returning to work.  He argued that the School Board had required him to attend an IME before it would permit him to resume his duties, leaving him with no choice but to resign to begin drawing on his retirement pension.

The Ontario Human Rights Commission's Policy on ableism and discrimination based on disability  states that an IME should not be used to "second guess" a person's request for accommodation.  An employer is only entitled to ask an employee to ask that an employee undergo an IME where there is a reasonable and bona fide basis to question the legitimacy of the employee's accommodation request or the adequacy of the information provided.  The Policy also states that, while no one can be made to attend an IME, "failure to respond to reasonable requests may delay the accommodation until such information is provided, and may ultimately frustrate the accommodation process."

The Decision of the Human Rights Tribunal of Ontario

The Human Rights Tribunal of Ontario (the Tribunal) dismissed Mr. Bottiglia's application, holding that the School Board had acted in good faith and that its request for an IME fulfilled the procedural aspect of the duty to accommodate.

Mr. Bottiglia applied for judicial review of the Tribunal's decision.

The Ontario Superior Court of Justice Decision

The Ontario Superior Court of Justice dismissed Mr. Bottiglia's application, holding that the Tribunal's decision fell within a range of acceptable, defensible outcomes.  The Court found that Dr. Levine's apparent "about-face within a span of roughly five months with respect to Mr. Bottiglia's ability to work" provided a "reasonable and bona fide basis for the School Board to question the adequacy and reasonableness of Dr. Levine's opinion, because he had been writing for two years that Mr. Bottiglia was unable to resume his duties at all."  More generally, at paragraph 76 of the decision the Court stated that "In certain circumstances, the procedural aspect of an employee's duty to accommodate will permit, or even require, the employer to ask for a second medical opinion."

Seeing no reason to depart from the usual rule that the successful party should be awarded costs, the Court awarded the School Board costs in the all-inclusive amount of $30,000.

Written with the assistance of Scott Thorner, summer student.

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