19 Apr

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:

“In my view, the Tribunal’s decision on this issue was a reasonable one.  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.  Without attempting to define all of those circumstances, they will include the circumstances that the Tribunal reasonably found existed here, where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert.  As the OHRC says in its Policy, an employer is not entitled to request an IME in an effort to second-guess an employee’s medical expert.  An employer is only entitled to request that an employee undergo an IME where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate.” [Emphasis added]

The Court also provided some guidance as to the permissible scope of an employer’s communications with an IME:

“When providing the examiner with information, it is my view that the employer must be careful not to impair the objectivity of the examiner.  Where an employer has provided information to an examiner which might reasonably be expected to impair that examiner’s objectivity, it is my further view that an employee is justified in refusing to attend the IME.  In such a case, the accommodation process will not have failed as a result of the employee’s refusal to attend the IME.  Instead, the process will have broken down as a result of the employer’s actions in potentially impairing the examiner’s objectivity.”

In this case, because the employer’s request was reasonable in the circumstances, the Court found that the employee breached his obligation to cooperate in the accommodation process in his refusal to attend the IME.  The Ontario Court of Appeal denied the employee’s request for leave to appeal.  (Bottiglia v Ottawa Catholic School Board).