We often receive calls from employees who have been asked by their employers to submit to an independent medical examination, or an “IME,” in response to the employee’s request for accommodation. The highest court in Ontario was recently asked to decide whether an employer is within its rights to ask employees to submit to such an examination as part of their duty to accommodate employees.

Bottiglia v Ottawa Catholic School Board – The Facts

After having been on a medical leave for approximately two years, Mr. Bottiglia contacted the Ottawa Catholic School Board (“the Board”) to discuss his eventual return to work. Due to conflicting medical notes from Mr. Bottiglia’s psychiatrist, the Board advised that it wanted Mr. Bottiglia to undergo an IME, relying on an internal Board policy for accommodating employees. Mr. Bottiglia agreed to attend an IME, provided that certain conditions were met. One of these conditions was that the parties agree on the identity of the independent medical examiner and that neither party would communicate with the examiner in the absence of the other party. After the examiner was selected, a dispute arose between the parties regarding a letter sent by the Board to the doctor, which Mr. Bottiglia believed violated the conditions agreed upon. On this basis, Mr. Bottiglia refused to attend the IME unless another examiner was chosen. This brought matters to a standstill, which led to Mr. Bottiglia filing his complaint to the Tribunal.

The Decisions

The Tribunal found that the Board did not act in bad faith during the accommodation process, rather, the Board had a legitimate basis for questioning Mr. Bottiglia’s psychiatrist and requesting an IME. The Tribunal concluded it was Mr. Bottiglia who failed to participate in the accommodation process. Therefore, his complaint was dismissed.

Mr. Bottiglia then applied for judicial review of the Tribunal’s decision. The Ontario Divisional Court found that the Tribunal’s decision had been reasonable: in certain circumstances, an employer may ask for a second medical opinion as part of its duty to accommodate. One such circumstance cited by the court is when an employer has a reasonable and legitimate reason to question the adequacy and reliability of the information provided by the employee’s medical professional.

In a complaint to the Human Rights Tribunal of Ontario, Mr. Bottiglia alleged that his employer, the Ottawa Catholic School Board (“the Board”) had discriminated against him by not allowing him to return to work from a medical leave until he submitted to an examination by a doctor of the Board’s choosing.

Mr. Bottiglia sought permission from the Ontario Court of Appeal to appeal the Divisional Court’s decision. However, the Ontario Court of Appeal did not permit Mr. Bottiglia’s appeal to move forward.

Lessons to be Learned

Despite the Board’s success in this case, it is important to note that the Divisional Court’s decision does not give employers unlimited discretion to require their employees to submit to IMEs. The Divisional Court was clear that an employer may ask for a second medical opinion in certain circumstances. The Divisional Court did not list all such circumstances, which means employers must still prove that they have a reasonable and legitimate reason for requesting the IME.

If you have been asked to submit to an IME and you would like to know whether such a request is legitimate, you should speak to a human rights lawyer. If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.