The Ontario Court of Appeal recently left intact a lower court decision that supports employers in seeking an independent medical examination (“IME”) in certain circumstances. In Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517, the Ontario Divisional Court held that an employee’s duty to accommodate may permit, or even require, the employer to ask for a second medical opinion where the employer has a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert.

Background

Marcello Bottiglia was a Superintendent of Schools employed by the Ottawa Catholic School Board (“Board”). He began a sick leave for anxiety and stress in April 2010. Up until June 2012, Mr. Bottiglia provided medical information from his psychiatrist indicating that he would need a lengthy period off work due to his “treatment resistant” condition. However, in August 2012, the psychiatrist advised that Mr. Bottiglia’s condition was improving and he could return to work in two months. The psychiatrist recommended 2 days/week for 4 hours/day, with no evening meetings, until Mr. Bottiglia’s condition warranted increasing this schedule. He also advised that the work hardening process could take six to twelve months but cautioned that Mr. Bottiglia might be unable to return to full-time capacity during that period.

The Board questioned whether the psychiatrist’s return to work plan was adequate or appropriate given the Board’s experience with work hardening and given the duties of a superintendent. The Board was also concerned that Mr. Bottiglia’s return to work was possibly premature and prompted by the end of his paid sick leave rather than his improved condition. The Board consequently requested that Mr. Bottiglia undergo an IME. In addition, the Board wrote to the medical examiner and requested information on Mr. Bottiglia’s psychiatric diagnosis, his limitations and restrictions. The Board also expressed its concern that the return to work was motivated by the expiry of paid sick leave and further advised that Mr. Bottiglia had left the workplace following a dispute over a recent appointment at the Board.

Mr. Bottiglia ultimately refused to attend the IME and resigned from his position. He also filed a human rights complaint alleging that the Board had discriminated against him on the basis of his disability, failed in its duty to accommodate, and acted in bad faith by requiring him to attend an IME and in providing misleading information to the examiner.

The Decisions

Human Rights Tribunal: The Human Rights Tribunal of Ontario (“Tribunal”) found that the Board acted reasonably in order to fulfill its procedural duty to accommodate. No substantive duty to accommodate arose on the Board’s part due to the fact that Mr. Bottiglia refused to attend the IME and thus failed to participate in the accommodation process. Mr. Bottiglia sought judicial review of the Tribunal’s decision.

Divisional Court: The Divisional Court held that that the Tribunal had reached a reasonable outcome in finding that the Board was justified in requesting an IME following inconsistent and contradictory medical information supporting the employee’s return to work. In particular, the Court found that the Board acted within its statutory duty under the Human Rights Code in requesting an IME. Due to legitimate concerns about the original medical documentation, the Board was not required to first seek further information from the reporting psychiatrist. Although the information conveyed to the medical examiner could have biased the IME, the Court found that the Tribunal reached an acceptable and defensible outcome in finding that the accommodation process broke down because of Mr. Bottiglia.

Court of Appeal: Mr. Bottiglia’s motion to appeal the Divisional Court’s decision was dismissed by the Court of Appeal without reasons on August 25, 2017.

Key Takeaways

It remains clear that the right to request an IME is not an unrestricted, free-standing right. For example, an IME cannot be used to “second-guess” a coherent, well-documented medical opinion. Nevertheless, the Court of Appeal has now confirmed its support for an employer’s right to request an IME to guide an accommodation process where the employer has a reasonable and bona fide basis to question the adequacy and reliability of the information provided by its employee’s medical professional.