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The Ontario Court of Appeal has refused to overturn a decision of the Ontario Human Rights Tribunal which stated that employers can force employees to agree to an independent medical examination (“IME”) who are requesting accommodation for medical reasons.  This an important case for employment law in Toronto and Canada.

Specifically, employers may be in a position to request an IME when an employer is provided insufficient and/or inconsistent medical information.

The case Bottiglia v. Ottawa Catholic School Board involved an employee who went on medical leave from the Ottawa Catholic School Board for stress and anxiety.  The school board made the request because it felt it was receiving conflicting information from the employee’s doctor.

The employee refused to provide an IME, resigned, and subsequently brought an application against the employer at the Ontario Human Rights Tribunal.  The employee specifically claimed that the school board was both improper in asking him to submit to an IME and that the school board had misled the medical examiner.

The school board responded by stating that it was reasonable to ask for an IME because of both inconsistencies and conflicting information received in relation to the employee’s condition, including a sudden change to the diagnosis such that the employee went from being unable to return to work for the foreseeable future to being able to return to work on the day on which his right to paid leave ended.

The Human Rights Tribunal agreed that the school board was reasonable in asking for an IME in the circumstances and dismissed the employee’s application.   The Tribunal specifically felt that there was a reasonable basis on which to question the adequacy and reliability of the medical information provided by the employee.  The decision was then supported by the Divisional Court on appeal.  The Ontario Court of Appeal then refused to consider overturning the decision.

The case shows that the issue of disability at work is complex and requires an ongoing assessment of employer and employee obligations


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