Request for independent medical examination reasonable if necessary to meet duty to accommodate: Tribunal, court
An Ontario employer’s request for an employee on medical leave to undergo an independent medical examination before returning to work when it had doubts about the medical information it had was reasonable, the Ontario Divisional Court has ruled.
Marcello Bottiglia was a teacher hired by the Carleton Roman Catholic Separate School Board in 1975. The school board became the Ottawa Catholic School Board (OCSB) in 1998 and the following year Bottiglia became superintendent of schools for the OCSB.
As superintendent, Bottiglia was responsible for implementing, reviewing and evaluating the curriculum, overseeing community education programs, and supervising three families of schools. It was a busy job and Bottiglia often worked into the evening.
In early 2010, Bottiglia was interested in the position of the OCSB’s director of education. However, the position went to someone else. Bottiglia was upset that the OCSB appointed someone to the position instead of holding an open competition. He felt betrayed and eventually his feelings led to depression.
By April 2010, Bottiglia’s depression had progressed to the point where he had to go off work. He had 465 paid sick days, so he had opted out of the OCSB’s long-term disability plan. The accumulated sick days — plus additional sick days and vacation days he accumulated while on sick leave — allowed him to remain off work while receiving pay until Oct. 17, 2012.
In May 2011, Bottiglia was diagnosed with unipolar depressive disorder with anxiety features. This condition had only “lows,” as opposed to the “highs” and “lows” of bipolar disorder. Bottiglia’s doctor informed the OCSB that Bottiglia required medical leave until further notice.
Bottiglia sent a letter to the OCSB’s director of education in February 2012 saying that a recent medical assessment indicated his full recovery would take “a prolonged period of time.” A letter from Bottiglia’s doctor a month later indicated his condition was resistant to treatment and an extended period of time off work was necessary.
On Aug. 16, Bottiglia’s lawyer informed the OCSB that Bottiglia’s condition was improving and he would be able to return to modified work within the next two months. This was followed on Sept. 7 with a letter from Bottiglia’s doctor with a “five-point plan for resumption of career,” in which the doctor noted Bottiglia would be able to return to work that fall two days per week for four hours each day and no evening meetings. As Bottiglia’s condition improved, his hours could increased each week. The doctor estimated this “work hardening” process would take six to 12 months, though it was possible Bottiglia still wouldn’t be able to return to full-time work after that period of time.
The OCSB was concerned Bottiglia’s doctor didn’t fully understand the nature of Bottiglia’s job and the fact he had changed his mind from his earlier opinion that Bottiglia wouldn’t be able to work for a long time. It requested an independent medical examination (IME) under its managerial guide for workplace accommodation. Bottiglia agreed with the conditions that neither party could communicate with the medical examiner in the absence of the other and the OCSB pay his salary until the assessment period was complete. The OCSB said it would revisit the pay issue following completion of the IME by a psychiatrist suggested by Bottiglia.
On Oct. 10, three weeks before the IME was scheduled, Bottiglia’s doctor sent a letter saying he believed Bottiglia was capable of returning to work immediately for two-and-one-half days per week. On Oct. 24, the OCSB contacted the IME psychiatrist asking him to examine Bottiglia and determine his fitness to return to work and any restrictions. It also mentioned it was concerned Bottiglia’s return to work was premature and related to the imminent expiry of his pay.
Bottiglia and his lawyer felt the OCSB was misrepresenting why he had left work and why he was returning. Bottiglia refused to attend the IME and informed the OCSB he would provide any additional medical information “to which the OCSB was lawfully entitled.” He maintained he was still willing to attend a “fair and objective” IME with the conditions previously indicated.
The OCSB said it would wait until an IME provided the answers to the questions it had asked the original IME psychiatrist. Bottiglia filed a human rights complaint in November 2012, claiming the OCSB had discriminated against him by failing to accommodate his return to work when it required him to attend an IME before permitting him to resume his position, then breaching their agreement with him when it provided misleading information to the examiner.
After the OCSB refused a proposal to retain a third-party health-care company to determine if an IME was necessary, Bottiglia resigned his position on Feb. 28, 2013.
The Ontario Human Rights Commission dismissed the complaint, finding the OCSB met its “procedural duty to accommodate” Bottiglia through reasonable efforts and it didn’t act in bad faith. The tribunal determined that Bottiglia failed to participate in the OCSB’s reasonable request for medical information through an IME.
Bottiglia appealed the decision to the Ontario Superior Court of Justice Divisional Court.
The court found that the OCSB had no contractual right to request an IME, as Bottiglia’s employment contract contained no reference to IMEs or bound him to the management guide to workplace accommodation. However, this didn’t mean the board couldn’t request one for the purposes of accommodating Bottiglia, said the court.
The court noted that the Ontario Human Rights Code imposes a duty to accommodate an employee’s disability to the point of undue hardship. This duty includes the right to request an IME for the purposes of accommodation. The tribunal’s finding on this fact was reasonable, said the court.
“In certain circumstances, an employer will be justified in requesting an IME as part of the duty to accommodate imposed upon employers under the code,” the court said.
The court noted that employers didn’t have an unrestricted right to request an IME, emphasizing that only “certain circumstances” called for it. In this case, the OCSB had reasonable cause to request an IME because it had concerns over the reliability of the medical information it received from Bottiglia’s doctor.
As for Bottiglia’s claim the OCSB had provided misleading information to the IME psychiatrist, the court agreed with the tribunal that the OCSB provided mostly “factual background information” and there was no deliberate attempt to mislead the psychiatrist. In addition, the court noted that Bottiglia was free to communicate his own opinions to the psychiatrist as well.
The court dismissed the appeal, agreeing with the tribunal that the OCSB’s request for an IME was reasonable and it didn’t discriminate against Bottiglia.
For more information see:
• Bottiglia v. Ottawa Catholic School Board, 2017 CarswellOnt 7627 (Ont. Div. Ct.).
