Tuesday, 26 June 2012

Doctors' Notes - Better Late than Never

Doctors are very busy people.  What doctors are primarily busy with are sick people.  Unfortunately, in addition to treating to the sick doctors are asked to complete a lot of paperwork confirming that those people are sick.  What happens, however, when a doctor is late in providing the necessary information to an employee’s employer or disability insurer?  Can the employer reasonably assume that because no medical note has been provided the employee has abandoned his position?

In a decision released June 26, 2012, Canadian Office and Professional Employees Union v. Yellow Pages Group Company, 2012 ONCA 448, the Court of Appeal for Ontario made two important rulings: (1) the contextual approach in McKinley remains the appropriate approach for unjust termination cases; and (2) concerns a labour arbitrator expresses about an employee’s lack of candour in the arbitration process are not relevant to the wrongful dismissal analysis as any dishonesty on the claimant’s part at that stage played no part in the employer’s decision to terminate his employment.


Mr. Ferreira was a 20-year employee of Yellow Pages with an unblemished history.  Yellow Pages provides its employees with a short-term disability benefit plan administered by Medisys, a third party.

On January 12, 2009, Mr. Ferreira began a short-term disability medical leave.  On January 20, 2009, Mr. Ferreira attended a medical assessment with his physician, Dr. Da Silva. The doctor filled out a medical form referred to as an Attending Physician’s Statement and Mr. Ferreira faxed the form to Yellow Pages, who then provided the form to Medisys.

Medisys, needing more information, sent Dr. Da Silva a follow-up questionnaire on February 4, 2009. However, the doctor did not get around to completing it.

As a result, Medisys wrote to Mr. Ferreira on February 16, 2009, advising him that as of January 23, 2009, his disability benefits had been terminated on the basis of insufficient medical evidence. In this letter, Medisys indicated that if the additional information was not received by March 3, 2009, Mr. Ferreira’s file would be closed.

On February 18, 2009, Yellow Pages sent a letter to Mr. Ferreira advising him that since his disability claim had been denied, he was obligated to return to work by February 20, 2009. Upon receipt of this letter, Mr. Ferreira spoke to a representative of Yellow Pages whereupon he was told that his employment would be terminated unless, by March 3, 2009, he returned to work or provided the required medical evidence supporting his absence.

Mr. Ferreira promptly made an appointment with Dr. Da Silva and saw him on February 25, 2009. The doctor wrote a letter to Medisys dated March 2, 2009, in which he expressed his view that Mr. Ferreira was unable to return to work. He sent this letter by regular mail on March 2 or 3. However, because the letter was not received by the March 3 deadline, Yellow Pages took the position that Mr. Ferreira had abandoned his position.

Because Mr. Ferreira worked in a unionized environment his union grieved the termination, but it was upheld both by the labour arbitrator hearing the matter and the Ontario Divisional Court on Judicial Review.

Court of Appeal for Ontario

On appeal to the Court of Appeal for Ontario, however, the appeal was allowed. 

In a short endorsement, Justice Cronk implicitly took the position, without expressing same, that the penalty did not fit the crime.  Applying the contextual approach set out by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38 Justice Cronk arrived at the decision that the Divisional Court had erred, holding that:

They failed to examine whether the arbitrator’s reasons demonstrate that he considered the matter contextually and balanced the nature and seriousness of Mr. Ferreira’s misconduct with the severity of the sanction imposed – a sanction that terminated a previously unblemished 20-year employment relationship.

As much would imply to this observer that Mr. Ferreira’s years of service and unblemished record were key to the Court of Appeal in deciding that dismissal was unwarranted.  One must recall that termination is widely regarded as “the capital punishment of employment disciplinary sanctions.” 

In the result the Court of Appeal ordered the matter back to a different arbitrator for a consideration of a different penalty.


As a practitioner I know the pain of waiting for information from a third party.  Implicit in this decision is a recognition, I would submit, from the court that if an error was made, it was not made by the employee.

Although the Divisional Court had ruled that Mr. Ferreira knew of the consequences for his failure to provide the information on time, being only two days late with that information, which was, after all under the power and control of someone other than himself, hardly seemed to warrant such a response.

Although one must balance the interests of employers to know what is happening against employees to have time to obtain information, clearly the scales this time tipped in favour of the employee.  I would suspect that the decision has more to do with the source of the delay (i.e. the doctor) than very much else.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer.  He tweets from @SeanBawden.

1 comment:

  1. Very great post with excellent and insightful information. Thanks for sharing.

    Employment Medical Assessments