Ontario Employers' Right To Request Independent Medical Examinations

Authored By: Laurie Jessome | Publish Date: December 19, 2017

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? A recent decision of the Ontario Divisional Court ruling may help set these questions straight.

In Bottiglia v. Ottawa Catholic School Board, 2017, the Divisional Court was asked to review a decision by the Human Rights Tribunal of Ontario (HRTO) to dismiss an application by an individual alleging that he had been discriminated against by his former employer, the Ottawa Catholic School Board (OCSB).

The employee resigned from his employment after the OCSB required that he attend an independent medical examination (IME) as a condition of returning to work. He had been on a leave of absence for approximately two years, during which time his doctor had maintained that he was completely disabled and that any return to work would be harmful.

However, in the late summer of 2012, the same doctor suddenly recommended that the senior school board employee return to work on an extremely limited basis, with a particular provision that he not be forced to attend any evening meetings.

The OCSB had a few reasons to be concerned. First, there was no explanation whatsoever for the sudden change in his condition. Second, the recommended hours of work were so limited that it suggested he was actually not fit to return at all.

The OCSB was also suspicious because hiss paid sick leave was scheduled to expire in October of 2012, which was the same return-to-work date proposed by his doctor.

The OCSB thus notified the employee that it needed him to attend an IME. He initially agreed to the request, but eventually declined after he learned that the OCSB had written to the IME physician to share its concerns about the bona fides of his condition and motivations. The employee argued that this letter was an effort to interfere with the objectivity of the IME physician’s assessment. He resigned and initiated a human rights application alleging that he had been subjected to discrimination on the basis of his disability.

The HRTO disagreed. It found that the employer’s request for a second opinion was necessary in the circumstances. The HRTO also found that he had terminated the accommodation process. His application to the HRTO was thus dismissed.

The employee sought judicial review of the decision. He argued that the OCSB had no right to require an IME because there was no law requiring an IME for superintendents and his contract of employment with the OCSB did not require IMEs as a condition of a return to work. The court rejected this position, finding that IMEs could be part of the employer’s duty to accommodate disability under the code.

The employee also argued that the OCSB had an obligation to ask his doctor for a second opinion rather than getting an IME. The court rejected this position, holding that the OCSB had legitimate concerns regarding the reliability of his doctor and it would have been unreasonable to require them to forego a second opinion in favour of more information from the same, unreliable source.

The employee also argued that the OCSB had attempted to influence the IME physician by sharing its view that his desire to return to work was motivated by the expiry of his paid leave. Although the court was sympathetic to this position, it deferred to the HRTO, which held that the OCSB had the right to share its view of the facts with the IME physician and that the employee was free to counter their views in his appointment. The application to the Divisional Court was thus dismissed.

So what are the takeaways for employers?

  • Employers do not need legislative or contractual authority to require that an employee submit to an IME. However, they must have reasonable and bona fide grounds for requesting the examination.
  • What is reasonable may vary from case to case, but this decision shows that a sudden change in recommendations or diagnoses and an apparent lack of knowledge of the workplace by the employees’ doctor can give rise to legitimate concerns regarding the reliability of the medical opinion.
  • When communicating with the IME physician, employers should be measured and transparent. The court stated clearly that the opinions expressed by the OCSB to the doctor could have impaired the objectivity of the IME and made it reasonable for the employee to decline to attend the examination.

Even with this note of caution from the court, the decision is a welcome sign that the HRTO will support reasonable efforts by employers to obtain medical information regarding an employee’s ability to work.

Laurie Jessome is a partner specializing in employment law and chair of the advocacy group at Cassels Brock. 


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