Written by E.C. Carla Zabek, Barrister & Solicitor, Mediator & Facilitator, Human Rights & Workplace Investigator

The Divisional Court ruled that in appropriate circumstances, an employer can request an employee to submit to an independent medical assessment (IME) as part of the accommodation process.  In this case, the employer, a school board, received conflicting medical reports which were only five months apart from the employee’s treating psychiatrist.  In June 2012, the psychiatrist’s report noted that the employee’s condition was resistant to treatment, that he would likely have a relapse if he returned to work and that he required a further extended period of time off work.  At this time, the employee had already been off work for approximately two years.  In August 2012, the same psychiatrist reported that the employee could return to work with restrictions on a lengthy work-hardening protocol.  The employer questioned the veracity of the August 2012 report, especially since the timing was suspicious, given the employee’s salary was about to come to an end.  For that reason, the employer requested that the employee attend an IME.  Initially, the employee agreed to the request but later refused to attend on the basis that the employer was requesting information to which it was not entitled, including a diagnosis.  The employee filed an application with the Human Rights Tribunal of Ontario (HRTO) alleging that the employer had failed in its duty to accommodate the employee in his return to work.  The HRTO dismissed the application, finding that the employer acted in good faith in its attempts accommodate the employee.  The employee then judicially reviewed the decision.  The Court found that the HRTO’s decision was reasonable:

(more…)