Canada: When Employers Can Require An Independent Medical Examination As Part Of The Duty To Accommodate

In Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII), Marcello Bottiglia was Superintendent of Schools at the Ottawa Catholic School Board (OCSB).  He had worked at the OCSB (and its predecessor) since 1975.  In early 2010, the OCSB appointed James Hanlon as its Director of Education, a position that Mr. Bottiglia hoped to be considered for, but was not.  This eventually triggered Mr. Bottiglia's depression, which led to a two-year paid sick leave from work followed by his eventual resignation in February 2013.

Throughout Mr. Bottiglia's leave, he provided updates on his condition.  His doctor had consistently stated the Mr. Bottiglia was unable to resume his duties at all.  As late as June 2012, Mr. Bottiglia's doctor stated that he was unable to attend work and that a return to the OCSB might place him at serious risk of relapse.

However, weeks later, in August 2012, his doctor did "an about-face" and advised the OCSB that Mr. Bottiglia was capable of returning to work soon and could work up to 8 hours per week upon his return.  This gave the OCSB pause, particularly because, among other things, the part-time hours his doctor recommended would make it impossible for him to fulfil the job of a Superintendent of Schools and, perhaps more importantly, his return to work coincided exactly with the cessation of his paid leave.   The OCSB wanted a second medical opinion – an Independent Medical Examination (or "IME") – and argued that Mr. Bottiglia's doctor did not have an understanding of the requirements of the job that he was suddenly recommending that Mr. Bottiglia return to.   Mr. Bottiglia challenged the OCSB's right to require him to undergo an IME.

The panel in Bottiglia decided for the OCSB.

The panel held that in certain circumstances, an employer will be justified in requesting an IME as part of the duty to accommodate imposed upon employers under the Ontario Human Rights Code.  The relevant section is 17(2), which imposes a duty on an employer to accommodate an employee's disability to the point of undue hardship.

What are the circumstances in which an employer may request an IME?

Employers do not have a freestanding, unrestricted right to request an IME.  The panel declined to define all of the circumstances in which an employer may request an IME, but did say that those circumstances included where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee's medical expert.

Bottiglia and the Legalization of Recreational Cannabis

Bottiglia may be of assistance to employers as they contend with the legalization of recreational cannabis.  For example, if an employee requests accommodation of their use of cannabis for medical reasons (including addiction), an employer is empowered to request an IME, particularly if there is evidence to suggest that an employee's doctor does not have a clear understanding of the health and safety implications of the employee using cannabis at work and/or the employee's job duties and the ability to perform those duties under the influence of the drug.

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