The Ontario Superior Court of Justice – Divisional Court has recently reviewed the scope of an employer’s right to request that an employee undergo an independent medical examination (“IME”) before returning to work.
In Bottiglia v. Ottawa Catholic School Board, the applicant, Marcello Bottiglia (“Bottiglia”), worked for the Ottawa Catholic School Board (“OCSB”) as a superintendent – a position he found very demanding. The OCSB had a vacancy for a director of education position, which was filled by way of application rather than an open competition. Bottiglia, wanting to apply for the position, felt betrayed by the OCSB’s decision not to hold an open competition. Bottiglia went into a state of depression, causing him to go on sick leave in April 2010 and eventually resign in 2012.
During his sick leave, Bottiglia’s physician gave conflicting information to the OCSB. Specifically, the doctor’s initial prognosis indicated that Bottiglia would be off for a prolonged period of time as the work may cause a relapse of his depression, but two months later claimed that he could return to work with certain restrictions. OCSB, puzzled by the inconsistent medical information, requested Bottiglia undergo an IME with a physician of its choosing.
Bottiglia refused to provide an IME, claiming that OCSB’s requirement to do so was improper. He also alleged that the OCSB provided inaccurate and untrue information to the examiner, including the opinion that his desire to return to work was motivated by the fact that he had run out of paid sick leave. This brought the accommodation process to a standstill and Bottiglia claimed these alleged actions forced him to resign. As a result, Bottiglia filed an application with the Ontario Human Rights Tribunal (“Tribunal”) against OCSB.
The Tribunal dismissed Bottiglia’s application finding, among other things, that the OCSB’s efforts to meet its duty to accommodate were reasonable and that Bottiglia’s failure to participate in the IME meant the substantive aspect of the duty to accommodate was not triggered. Further, the Tribunal found that the OCSB was not precluded from expressing its opinion to the examiner in an effort to put the need for the IME into context. Bottiglia sought judicial review of the Tribunal’s decision.
The Tribunal’s conclusions were upheld on judicial review. The Court determined that, 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. One of these circumstances, as existed in this case, is where an employer has a reasonable bona fide reason to question the accuracy and reliability of the information provided by the employee’s physician.
Regarding Bottiglia’s refusal to attend the IME, the Court affirmed that in the circumstances the employer was justified in requesting an IME and was permitted to provide the examiner with information relevant to the issue of accommodation. Importantly, however, the Court noted that when providing the examiner with information, the employer must not impair the objectivity of the examiner.
On that issue, the Court indicated that it would not have concluded as the Tribunal did. Providing the opinion regarding Bottiglia’s motives for returning to work was not pertinent to the IME and risked impairing the examiner’s objectivity. Nonetheless, the Court concluded that the Tribunal’s decision fell within a “range of acceptable defensible outcomes” and was not overturned.
Balancing the employer’s need for adequate medical information against the employees right to privacy is an ongoing issue within the employment sphere. This case affirms that in certain circumstances an employer may justifiably insist on an IME with a doctor of its choosing as part of the return to work/accommodation process.
When an employer can justifiably request an IME and what information it can provide to an examiner is governed by the principle of reasonableness. In this instance, raising an objective bona fide doubt as to the adequacy and reliability of the employee’s medical information bolstered the legitimacy of an employer’s request for an IME and allowed information regarding the employer’s concerns to be relayed to the examiner.
The full text of the case can be read here.
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