Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 November 21, 2018 | Canadian Employment Law Today CREDIT: PUIPHOTOMAN/SHUTTERSTOCK ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information. from Morris' doctor that indicated Mor- ris had a major depressive disorder and he would be passing along a psychiatrist's con- sulting report. It also stated Morris' antici- pated return-to-work date would be "some- time in the next 6-12 months." However, by May 8, PSA hadn't received the report and it suspended Morris' STIIP benefits, 20 days before the completion of his entitlement and the start of LTD benefits. In a letter to Morris, PDA said it had reason to con - sider his absence as based on a workplace dispute. While the agency accepted Mor- ris had a medical condition, it didn't know how disabled he was and wanted an objec- tive assessment from an IME given the new return-to-work date was so far away. Morris replied that he had never refused an IME, but only had concerns over the objectivity of who was doing it. He said he could provide further information if neces - sary, but felt he was being set up. PSA rec- ommended psychiatrists for an IME, but Morris didn't attend because he wasn't feel- ing stable and his doctor didn't support it. Morris also didn't believe the STIIP terms authorized an IME. PSA cut off Morris' extended health care benefits at the end of May and he filed a human rights complaint, claiming PSA discriminated against him on the basis of his mental disability when it suspended his STIIP benefits, denied him LTD benefits, and requested he attend an IME against his doctor's advice and without asking his doc - tor for additional information. In September, Morris provided a medical questionnaire completed by his doctor that indicated Morris was still suffering from a "major depressive episode" and his restric - tions and limitations were related to cogni- tive ability. His prognosis was unknown, but "his intellect allows him to cover his real state of function" and his "antipathy likely represents a deterioration of his mental state." After receiving this information PSA reinstated his health care benefits and STIIP benefits. Morris was then able to receive LTD benefits. e tribunal agreed that Morris had a mental disability and he experienced an ad - verse impact when PSA suspended his STI- IP, which in turn led to a delay in receiving LTD benefits. In addition, when PSA pres- sured him to attend an IME and aggravated his anxiety, Morris was subjected to adverse treatment, said the tribunal. However, the tribunal found that PSA's continuing requests for an IME were not discriminatory. ey weren't based on Mor - ris' disability, but rather an honest belief that PSA needed more information, since Morris was cleared for modified duties in February 2015 but his return to work was later abort - ed and his eventual return date was six to 12 months later. PSA "had good reason to have concerns" about the medical information it had, said the tribunal. In addition, while Morris and his doctor expressed concerns about the impartiality of the IME, it wasn't made clear why an IME would be detrimen - tal to Morris' health. Ultimately, it was poor communication — and a few mistakes by both sides — that led to PSA's requests for an IME, its lack of satisfactory medical information, and the eventual suspension of Morris' STIIP ben - efits, not any discriminatory reasons, said the tribunal. As a result, there was no nexus between Morris' disability and the adverse impact of his benefits cessation. "ese are not issues related to discrimi - nation," said the tribunal in dismissing the complaint. "Rather, they are employment- related procedural issues which I find fall outside the scope of the (B.C. Human Rights Code) and which properly should be ad - dressed through other avenues, including possibly arbitration or civil procedure." For more information see: • Morris v. Ministry of the BC Public Service Agency, 2018 CarswellBC 2762 (B.C. Hu- man Rights Trib.).

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