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Court dismisses leave application in IME case

|Written By Alex Robinson
Court dismisses leave application in IME case
Allison Greene says a recent Ontario Court of Appeal decision clarifies when employers will be justified in requesting an independent medical examination. Photo: Robin Kuniski

The Ontario Court of Appeal has confirmed that employers can require employees to submit to an independent medical examination by a doctor of their choosing in certain circumstances.

The court dismissed a motion seeking leave to appeal a Divisional Court decision that found an employer is justified in requesting such an examination as part of the duty to accommodate.

Employment lawyers say the decision clarifies when employers will be justified in requesting such an examination.

“I don’t think it should be interpreted as, and I think they explicitly said that it’s not, a free-standing right to ask for an [independent medical examination],” says Allison Greene, a partner with Karimjee Greene LLP, who was not involved in the case.

“But that when there is a reasonable basis for questioning whether or not the information provided by the employee is adequate to meaningfully engage in the accommodation process, then the employer might be justified in asking for an [independent medical examination].”

In Bottiglia v. Ottawa Catholic School Board, an employee, Marcello Bottiglia of the Ottawa Catholic School board, went on sick leave in April 2010 for stress and anxiety.

When the board received conflicting medical information, it requested that Bottiglia submit to an independent medical examination. In June 2012, the board received a copy of a letter from a doctor that said Bottiglia required an extended period of time off work. Around two months later, Bottiglia’s lawyer sent the board a letter saying his condition was improving and that the doctor believed he would be able to return to modified work some time in the following two months.

Bottiglia’s paid time off work was set to come to an end in October 2012.

Bottiglia refused to submit to the independent medical examination, resigning in 2012, and started an application under the Human Rights Code. He alleged the school board improperly required him to attend the examination before resuming his duties and provided the examiner with misleading information.

When his application was dismissed, the plaintiff sought judicial review from the Divisional Court, arguing that the tribunal was wrong not to consider evidence that arose after his application was brought. He also contended that the tribunal’s decision was unreasonable.

The Divisional Court dismissed his application and found that the board was within its rights to request the examination in this situation.

“Contrary to the submission made on behalf of Mr. Bottiglia, the Tribunal’s ruling does not mean that employees must submit to an IME as part of the accommodation process,” Justice Gregory Ellies wrote in the decision. “The Tribunal did not hold that employers have a freestanding, unrestricted right to request an IME. Rather, the Tribunal held that, in certain circumstances, an employer will be justified in requesting that an employee attend an IME as part of the employer’s duty to accommodate.”

Greene says the takeaway for employees is that it is really important to provide adequate medical information and make accommodation requests that are specifically tailored for the position.

“I think in this case the doctor admitted that he made boilerplate recommendations for accommodation and that the doctor also wasn’t familiar at all with the requirements of the position,” she says. She says employees can obviate the need for an independent medical examination by providing comprehensive information from their doctor and a sensible plan. 

Adrian Ishak, a partner with Rubin Thomlinson LLP, who was not involved in the case, says employees facing an examination should agree to participate and then grieve later if it was requested improperly.

“Really, you shouldn’t be saying no to IMEs unless you’re 150-per-cent sure that the employer is not entitled to it,” he says. “And even then, you’re better off agreeing to it and then including that in your evidence of why additional damages should be awarded on the basis of the employer’s abuse of its rights.”

Ishak says the decision is helpful as it somewhat clarifies when an employer has the right to request an IME. It also should make employers cautious about how to communicate with independent medical examiners so as not to end the accommodation process by improperly biasing the examiner’s view of the employee’s condition,  Greene says.

Jason Tam, the lawyer acting for the Human Rights Tribunal of Ontario, declined to comment. A lawyer representing the employee declined to comment and the lawyers representing the Ottawa Catholic School Board did not respond to requests for comment.            

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