Canada: I Want A Second Opinion: When Can Employers Require An Independent Medical Examination?

Last Updated: October 6 2017
Article by Laurie Jessome

Many employers have found themselves in a situation where their employee has provided a medical note or doctor's recommendation that doesn't seem quite right.  But how do you investigate further without invading your employee's privacy and without breaching your duty to accommodate under the Ontario Human Rights Code (the "Code")?  A recent decision of the Ontario Divisional Court, Bottiglia v. Ottawa Catholic School Board and the Human Rights Tribunal of Ontario 2017 ONSC 2517 ("Bottiglia") provides some helpful guidance.

In Bottiglia, the Divisional Court was asked to review a decision by the Human Rights Tribunal of Ontario (the "HRTO") to dismiss an application by Mr. Bottiglia alleging that he had been discriminated against by his former employer, the Ottawa Catholic School Board (the "OCSB").  Mr. Bottiglia resigned from his employment after the OCSB required that he attend an independent medical examination ("IME") as a condition of any return to work.  At the time of the request, Mr. Bottiglia had been on a leave of absence for approximately two years.  Throughout his leave, his treating physician had maintained that Mr. Bottiglia was completely disabled, that his condition was "treatment resistant" and that any return to work would likely cause Mr. Bottiglia's condition to worsen.  The last such update was provided to the OCSB in March of 2012.  In August of 2012, the same doctor recommended a return to work on the following schedule: 4 hours a day, 2 days a week, with no evening meetings permitted.  The doctor further advised that this work hardening schedule would need to be in place for 6 to 12 months and that a return to full time status in that time period was not likely.

The OCSB had a few reasons to be concerned about this recommendation.  First, there was no explanation whatsoever for the sudden change in Mr. Bottiglia's condition.  In March, his doctor believed that a return to work would be harmful to Mr. Bottiglia.  Only a few months later, he was recommending that Mr. Bottiglia return to the workplace.  The HRTO found that this change was "significant and unexpected".  The OCSB was also concerned because of the extremely limited scope of Mr. Bottiglia's proposed hours, which it believed was inconsistent with the nature of his job as a school superintendent and  reflected a very tentative and uncertain prognosis for Mr. Bottiglia.  The OCSB also had another reason to doubt the bona fides of Mr. Bottiglia's return to work plan; Mr. Bottiglia's paid sick leave was scheduled to expire in October of 2012, which was the same return to work date proposed by his doctor.

As a result of these concerns, the OCSB notified Mr. Bottiglia that it needed him to attend an IME as a condition of any return to work.  Mr. Bottiglia initially agreed to the request but eventually declined to attend the appointment after legal counsel for the OCSB wrote to the IME physician to advise of the reasons it had requested the IME, including its concern that Mr. Bottiglia's request to return to the workplace coincided with the end of his paid time off work.  The OCSB also advised the IME physician that Mr. Bottiglia's leave of absence commenced after he did not have an opportunity to post for a position in which he was interested and further requested that the IME affirm if Mr. Bottiglia had been diagnosed with a psychiatric condition for which he was receiving treatment.  Mr. Bottiglia took the position that this letter from the OCSB was an effort to interfere with the objectivity of the IME physician's assessment and eventually resigned from his employment in protest.  He then initiated an application with the HRTO alleging that he had been subjected to discrimination on the basis of his disability and that the OCSB had no right to insist on an IME as a condition of any return to work.

The HRTO disagreed with Mr. Bottiglia and found that the employer's request for a second opinion was reasonable and necessary in the circumstances.  The HRTO also found that Mr. Bottiglia had terminated the accommodation process.  Mr. Bottiglia's application to the HRTO was thus dismissed.  Mr. Bottiglia then sought judicial review of the HRTO's decision, alleging that the HRTO erred in finding that the OCSB acted reasonably in requiring him to undergo an IME as part of the accommodation process and in finding that he had terminated the accommodation process through his refusal to participate in the IME.

In considering Mr. Bottigilia's application, the Divisional Court noted that the HRTO is entitled to deference in its factual findings and its interpretation of the Code.  Therefore, the Divisional Court could only set aside the decision of the HRTO if it was not rationally supported.  The fact that the Divisional Court may have reached a different conclusion would not be sufficient for Mr. Bottiglia to succeed in setting aside the HRTO's decision.

In his application to the Court, Mr. Bottiglia argued that the OCSB had no lawful right to require an IME because it needed either contractual or statutory authority to do so.  Since there was no law requiring an IME for school superintendents and since Mr. Bottiglia's contract of employment with the OCSB did not require IMEs as a condition of a return to work following a disability leave, Mr. Bottiglia argued that he had no obligation to submit to a medical evaluation by an independent physician.  The Divisional Court rejected this position, finding that IMEs could be part of the employer's duty to accommodate disability under the Code.  The Court also found that Mr. Bottiglia's doctor had provided inconsistent recommendations and information regarding Mr. Bottiglia's condition and that the OCSB's concerns were both reasonable and bona fide.  Mr. Bottiglia also alleged that the OCSB was obligated to first ask his treating physician for more information regarding his recommendation rather than referring the matter to another doctor.  This argument was also rejected by the Court, which found that OCSB had legitimate concerns regarding the reliability of Mr. Bottiglia's own doctor and that it would have been unreasonable to require them to forego a second opinion in favour of more information from the same, unreliable source.

Another argument advanced by Mr. Bottiglia was that the OCSB had improperly attempted to influence the IME physician by sharing its view that his leave of absence was prompted by the dispute regarding a promotion and that his desire to return to work was motivated by the expiry of his sick leave.  The argument was more sympathetically received by the Divisional Court but it ultimately deferred to the HRTO, which held that the OCSB had the right to share its view of the facts with the IME physician and that Mr. Bottiglia was free to counter their views in his session with the doctor.  Mr. Bottiglia's application to the Divisional Court was thus dismissed.

So what are the takeaways for employers?  First, employers do not need legislative or contractual authority to require that an employee submit to an IME.  However, they must have reasonable and bona fide reasons for requesting the examination.  Although the Court declined to provide examples of other circumstances that would be considered reasonable and bona fide, this decision shows that a sudden change in recommendations or diagnoses and an apparent lack of knowledge of the workplace can give rise to legitimate concerns regarding the reliability of the medical opinion.  Second, when communicating with the proposed IME physician, employers would be well-advised to be measured and transparent.  Although the Court declined to set aside the decision of the HRTO regarding the OCSB's communications with the IME physician, it did state clearly that the opinions expressed by the OCSB in its letter to the doctor could have impaired the objectivity of the IME and made it reasonable for Mr. Bottiglia to decline to attend the examination.

Even with this note of caution from the Court regarding communications with an IME doctor, the decision in Bottiglia is a welcome sign that the HRTO will support reasonable efforts by employers to obtain timely and accurate medical information regarding an employee's ability to work.  As always, we recommend reaching out to your Cassels Brock Employment Law team if you are considering a complicated return to work plan or if you need guidance about how and when to request an IME.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Laurie Jessome
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions