Ontario decision clarifies employers’ rights
Ontario employers should be comforted to know that when it comes to requesting an independent medical examination (IME) from employees, they have more rights than they may realize. That’s because of a recent decision clarifying the contractual and statutory requirements around such requests.
“The incredible thing about this case is you now have the courts of Ontario saying all employers have a statutory basis because you all have a duty to accommodate under the Human Rights Tribunal of Ontario (HRTO). And how can you do a really good job of accommodating if you don’t have all the facts you need?” said Anneli Legault, a partner at Dentons in Toronto.
Employee goes on sick leave
The case involved Marcello Bottiglia, a longtime employee of the Ottawa Catholic School Board (OCSB) in Ontario, who started in 1975 as a teacher and eventually became the superintendent of schools.
In 2010, he hoped to become director of education, but the position was filled by another, which he said eventually triggered his depression, so he went on sick leave.
Bottiglia had accumulated about 465 paid sick days so he had opted out of the OCSB’s long-term disability plan in 2005. And while on sick leave, he continued to accumulate paid sick days and vacation days.
All of this meant his paid time off work would come to an end in October 2012.
While off sick, Bottiglia was treated for anxiety and stress by his family doctor, and then by a psychiatrist, Dr. Levine, who advised the school board in June 2011 that Bottiglia required medical leave until further notice.
In February 2012, Bottiglia wrote to the director of education to say “a full recovery will take a prolonged period of time.” And a March letter from Levine stated Bottiglia’s condition had been relatively treatment-resistant and he required an extended period of time off work.
But in August 2012, Bottiglia’s lawyer told the OCSB Bottiglia’s condition was improving and he could return to modified work sometime in the next two months.
But the OCSB felt Levine didn’t have an objective understanding of Bottiglia’s workplace or his duties as a supervisor. It was also concerned Levine’s recommendation contradicted his recommendation from March, and skeptical that the return to work coincided exactly with the cessation of Bottiglia’s paid leave.
As a result, the OCSB requested Bottiglia undergo an IME, citing its Management Guide to Workplace Accommodation for Employees. And Bottiglia agreed to the IME, with some conditions.
However, after the OCSB’s lawyer wrote to the medical examiner asking for an opinion on Bottiglia’s limitations and restrictions — making several comments on the situation — Bottiglia’s lawyer said it was a “prejudiced” letter and Bottiglia would not attend an IME unless it was “fair and objective.”
This brought matters to a standstill, and in February 2013, Bottiglia tendered his resignation.
He also started an application under the Human Rights Code, alleging the OCSB discriminated against him by failing to accommodate his return to work. He said the board improperly required him to attend an IME and breached the terms of agreement by providing the examiner with misleading information. He said the OCSB left him with no choice but to resign to begin drawing on his retirement pension.
But in 2015, the application to the HRTO was dismissed.
“It is unfortunate that this process broke down but I do not find that the OCSB was acting in bad faith,” it said.
“The OCSB’s efforts during this period to meet its procedural duty to accommodate the applicant were reasonable, and...it fulfilled the procedural aspect of any duty it would have had to accommodate the applicant. The substantive aspect of any duty to accommodate would not have been triggered because the applicant ultimately failed to participate in what I have concluded was the OCSB’s reasonable request for medical information by means of an IME.”
As a result, Bottiglia applied for a judicial review. But, again, his application was dismissed in a May 31, 2017, decision.
“The tribunal’s decision regarding the request to attend an IME was likewise reasonable in the circumstances of this case, which gave rise to a legitimate concern on the part of the OCSB about the accuracy and the reliability of the information it received from Mr. Bottiglia’s treating physician,” said the Ontario Superior Court of Justice Divisional Court in Bottiglia v. Ottawa Catholic School Board.
In the end, the OCSB was awarded costs in the amount of $30,000.
Statutory rights
Bottiglia’s lawyer had said an employer could only request an IME if it had either statutory or contractual authority to do so, citing the 1964 case Re. Thompson and Town of Oakville.
The tribunal’s original decision said the management guide permitted the request for an IME. But the court disagreed, saying the OCSB’s request was conditional upon a contractual right being contained in a collective agreement or employment contract: “Nothing in writing required Mr. Bottiglia to submit to an IME.”
However, the court disagreed with Bottiglia (and agreed with the tribunal) when it came to the statutory authority, saying it wasn’t right to assume an employer can only request an IME when expressly authorized by statute.
“In certain circumstances, an employer will be justified in requesting an IME as part of the duty to accommodate imposed upon employers under the (Human Rights) Code.”
When Levine did an about-face with respect to Bottiglia’s ability to work, “this provided a reasonable and bona fide basis for the OCSB to question the adequacy and reasonableness of Dr. Levine’s opinion,” said the court, citing the policies of the Ontario Human Rights Commission:
“There may be instances where there is a reasonable and bona fide basis to question the legitimacy of a person’s request for accommodation, or the adequacy of the information provided… No one can be forced to submit to an independent medical examination but failure to respond to reasonable requests may delay the provision of accommodation until such information is provided.”
An employer is not entitled to request an IME to second-guess an employee’s medical expert, said the court, but it is entitled to make the request if it cannot reasonably expect to obtain the information it needs from the employee’s expert, as part of the duty to accommodate.
However, that doesn’t mean employers have a “freestanding, unrestricted right to request an IME.”
Requesting an IME
There’s been a long-standing principle that an employer can only request an IME if there was a contract or collective agreement that provided for it, or if there was statutory authority. But the divisional court cited section 17.2 of the Human Rights Code which talks about statutory authority as part of procedural duty to accommodate, said Simon Heath, principal of Heath Law in Mississauga, Ont.
“In the right circumstances, where the information can’t be secured by any other less-intrusive means, an employer’s within its right to request an IME,” he said.
“Employers are entitled to know that you’re fit to resume your duties… they need to get a closer look, with better, objective evidence, to figure out if the guy is capable of coming back, and if so, with what, if any, restrictions.”
In this case, the school board was getting information that didn’t appear to be based on any industry standards or objective findings, plus the feedback seemed to link directly to the paid leave ending, said Twila Reid, partner at Stewart McKelvey in St. John’s, “which would leave an employer to pause to say, ‘Is this really the best accommodation for this individual, and is this information in this individual’s best interest, but also in line with what we know about our workplace?’”
But requesting an IME is still rare and is more for especially challenging cases, said Legault. It’s better for employers to first request more information from the employee’s doctor.
“Doctors are busy and they don’t always have a lot of time to sit down and write reports, and they may not have realized that a lot was hanging on this report, so you usually try to go back to the personal doctor, and that gets rid of a lot of the problematic cases,” she said.
“You’re only left with a small percentage where you’re still totally worried, baffled, concerned about what you’re getting — and that’s when you go for the IME.”
Employers may also request an IME if there’s a sudden shift in the information being given, if they fear the doctor has become an advocate for the patient, or they’re concerned the employee is not well enough to do his job, said Legault.
Best practices
One takeaway for employers is when preparing an employment contract or negotiating collective agreements, either put language about medical assessments right into the contract or at least incorporate them by reference in existing policies that address the issues, said Heath, “so that you can have the foundation.”
But employers don’t really need a specific clause or policy referring to an IME, said Reid.
“You have to realize this is an employee that’s seeking a change in whatever their regular conditions of employment are, so they’re either seeking an absence beyond what they’re permitted in terms of paid leave; they’re seeking a modification to their duty or role; or they’re seeking some kind of special treatment in some way. So when an employer is assessing that, an employer has to be satisfied it has reasonable information in terms of assessing that request. I don’t personally believe that you need a specific policy that says you’re allowed to get an IME.”
A lot of employers now have standard forms for a medical certificate, so if an employee is going to be off work, her doctor can fill it out with more information than “Off work for medical reasons,” she said.
“That’s the kind of note that drives employers crazy… with no knowledge about the job or what’s involved or when the employee’s going to return or if they’re going to have functional restrictions — that’s really the kind of note that drives people crazy.”
It pays to have good communication around the whole process, said Legault.
“The problem is sometimes people are just angry by this point. The employee’s angry because they’re either about to be cut off or not being allowed to return, and the employer is angry because they think someone’s lying, so the communication that would have solved it isn’t happening anymore.”
