Saturday, 2 September 2017

Ontario’s Top Court Confirms that Employees May Sometimes be Required to Attend Medical Examination by Doctor of Employer’s Choosing

(c) istock/vadimguzhva

“The motion for leave to appeal is dismissed with costs fixed at $1,000.” With those thirteen simple words, Ontario’s top court has confirmed that employees in Ontario may sometimes be required to submit to an invasive medical examination - by a doctor of their employer’s choosing - as part of the duty to accommodate and return to work process.

On August 25, 2017, the Court of Appeal for Ontario released its endorsement on a motion for leave [read: “permission”] to appeal the decision of the Ontario Divisional Court in Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII).

This is a big deal for Ontario employment and human rights law.

Facts

I previously blogged about the Divisional Court’s decision in my post Divisional Court Rules that Employees May Sometimes be Required to Attend Medical Examination by Doctor of Employer’s Choosing.

As I noted in that post, the application to the Divisional Court concerned an application for judicial review of a 2015 decision of the Human Rights Tribunal of Ontario: Bottiglia v. Ottawa Catholic School Board, 2015 HRTO 1178.

In his application, the Applicant, Mr. Marcello Bottiglia, alleged that his employer, the Ottawa Catholic School Board had discriminated against him by failing to allow him to return to employment unless he submitted to an examination by a doctor of the School Board’s choosing.

The reason that the School Board had wanted Mr. Bottiglia to see a doctor of their choosing was that, the Board’s Director of Education, Julian Hanlon, was concerned with Mr. Bottiglia’s doctor’s recommendations. Mr. Hanlon was of the view that Dr. Levine was recommending accommodation without an objective understanding of Mr. Bottiglia’s workplace or the essential duties of a supervisor, which duties had changed since Mr. Bottiglia went off sick. Mr. Hanlon was concerned that Dr. Levine’s August 31, 2012, recommendation contradicted his recommendation of March 2012, in which he stated that Mr. Bottiglia ought not to return to work. He also expressed concern that it was premature for Mr. Bottiglia to return to work in light of the demanding nature of the superintendent’s job and the uncommonly slow start suggested by Dr. Levine. He also expressed concern about the subjective nature of Dr. Levine’s opinion and the fact that Dr. Levine had provided no clear prognosis. Finally, he expressed skepticism about the fact that Mr. Bottiglia’s return to work coincided exactly with the cessation of his paid leave.

Before the Human Rights Tribunal of Ontario, Vice-Chair Eric Whist held that: (a) it reasonable that after receiving the applicant’s initial medical information and return to work proposal the OCSB determined that it wanted additional information about the applicant’s medical condition, prognosis, restrictions and potential accommodations; and that (b) it reasonable that the OCSB wanted to obtain the information by means of an IME.

The Divisional Court found that the Tribunal’s decision in this respect was reasonable. Wrote Justice M. Gregory Ellies on behalf of the Divisional Court:

[70] As the Tribunal member pointed out, Dr. Levine had done an about-face within a span of roughly five months with respect Mr. 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, because he had been writing for two years that Mr. Bottiglia was unable to resume his duties at all.

Thus, while the Divisional Court was highly critical of how the School Board approached the IME process (see paragraphs 92-94 of that court’s decision), the Divisional Court ultimately held that the Tribunal’s finding on this issue fell within a range of acceptable, defensible outcomes. Justice Ellies held that, “It was open to the Tribunal to find that the OCSB acted reasonably…” even if he would not have arrived at the same conclusion.

Decision

The Court of Appeal’s endorsement adds nothing to the analysis on this point. I have reproduced the text of the court's handwritten endorsement in its entirety. No reasons for the court’s decision were provided and as such we are left to wonder why Ontario’s top court declined to hear the matter.

For those that are interested, a copy of our factum for leave to appeal can be found here: Factum of the Moving Party - M47940.

Commentary

There is little to add at this point that has not already been said. It is disappointing that the Court of Appeal declined to even consider the case, given the issues raised in our factum. However, as disappointing as it is, it is the decision we have received.

Takeaways for Employees with Labour Pains

The clear takeaway from this case for employees is that there may be times when you will be required to attend a medical examination by a doctor of your employer’s choosing. However, as this case also makes clear, those cases will be rare.

If you are an individual looking for assistance with respect to a request made by your employer, contact the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP; we would be happy to be of service to you.

Takeaways for Employers with Labour Pains

This case is a win for employers. The Divisional Court has clearly said that, in certain, limited cases, employers will be within their rights to request that an employee submit to an independent medical examination by a doctor of the employer’s choosing as part of the accommodation process. Ontario’s top court has implicitly endorsed such a ruling.

What this case also demonstrates is that the employer can end the accommodation process by potentially biasing the examination. It is important to note that the court in this case found that that in fact happened, which is to say that a different member of the Human Rights Tribunal of Ontario may have reached a different conclusion in this case.

If you are an employer and you are faced with a difficult accommodation case, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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