Canadian Employment Law Today

July 19, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today | 11 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends In early 2010, Bottiglia was interested in the position of the OCSB's director of education. However, the position went to someone else. Bottiglia was upset that the OCSB appointed someone to the position instead of holding an open competition. He felt betrayed and eventually his feelings led to depression. By April 2010, Bottiglia's depression had progressed to the point where he had to go off work. He had 465 paid sick days, so he had opted out of the OCSB's long-term disability plan. e accumulated sick days — plus ad- ditional sick days and vacation days he accu- mulated while on sick leave — allowed him to remain off work while receiving pay until Oct. 17, 2012. In May 2011, Bottiglia was diagnosed with unipolar depressive disorder with anxiety features. is condition had only "lows," as opposed to the "highs" and "lows" of bipo- lar disorder. Bottiglia's doctor informed the OCSB that Bottiglia required medical leave until further notice. Bottiglia sent a letter to the OCSB's direc- tor of education in February 2012 saying that a recent medical assessment indicated his full recovery would take "a prolonged period of time." A letter from Bottiglia's doctor a month later indicated his condition was re- sistant to treatment and an extended period of time off work was necessary. On Aug. 16, Bottiglia's lawyer informed the OCSB that Bottiglia's condition was im- proving and he would be able to return to modified work within the next two months. is was followed on Sept. 7 with a letter from Bottiglia's doctor with a "five-point plan for resumption of career," in which the doc- tor noted Bottiglia would be able to return to work that fall two days per week for four hours each day and no evening meetings. As Bottiglia's condition improved, his hours could increased each week. e doctor esti- mated this "work hardening" process would take six to 12 months, though it was possible Bottiglia still wouldn't be able to return to full-time work after that period of time. e OCSB was concerned Bottiglia's doc- tor didn't fully understand the nature of Bot- tiglia's job and the fact he had changed his mind from his earlier opinion that Bottiglia wouldn't be able to work for a long time. It requested an independent medical exami- nation (IME) under its managerial guide for workplace accommodation. Bottiglia agreed with the conditions that neither party could communicate with the medical examiner in the absence of the other and the OCSB pay his salary until the assessment period was complete. e OCSB said it would revisit the pay issue following completion of the IME by a psychiatrist suggested by Bottiglia. On Oct. 10, three weeks before the IME was scheduled, Bottiglia's doctor sent a let- ter saying he believed Bottiglia was capable of returning to work immediately for two- and-one-half days per week. On Oct. 24, the OCSB contacted the IME psychiatrist asking him to examine Bottiglia and determine his fitness to return to work and any restric- tions. It also mentioned it was concerned Bottiglia's return to work was premature and related to the imminent expiry of his pay. Bottiglia and his lawyer felt the OCSB was misrepresenting why he had left work and why he was returning. Bottiglia refused to attend the IME and informed the OCSB he would provide any additional medical in- formation "to which the OCSB was lawfully entitled." He maintained he was still willing to attend a "fair and objective" IME with the conditions previously indicated. e OCSB said it would wait until an IME provided the answers to the questions it had asked the original IME psychiatrist. Bottiglia filed a human rights complaint in November 2012, claiming the OCSB had discriminated against him by failing to accommodate his return to work when it required him to at- tend an IME before permitting him to re- sume his position, then breaching their agreement with him when it provided mis- leading information to the examiner. After the OCSB refused a proposal to re- tain a third-party health-care company to determine if an IME was necessary, Bottiglia resigned his position on Feb. 28, 2013. e Ontario Human Rights Commission dismissed the complaint, finding the OCSB met its "procedural duty to accommodate" Bottiglia through reasonable efforts and it didn't act in bad faith. e tribunal deter- mined that Bottiglia failed to participate in the OCSB's reasonable request for medical information through an IME. Bottiglia appealed the decision to the Ontario Superior Court of Justice Division- al Court. e court found that the OCSB had no contractual right to request an IME, as Bot- tiglia's employment contract contained no reference to IMEs or bound him to the man- agement guide to workplace accommoda- tion. However, this didn't mean the board couldn't request one for the purposes of ac- commodating Bottiglia, said the court. e court noted that the Ontario Human Rights Code imposes a duty to accommo- date an employee's disability to the point of undue hardship. is duty includes the right to request an IME for the purposes of ac- commodation. e tribunal's finding on this fact was reasonable, said the court. "In certain circumstances, an employer will be justified in requesting an IME as part of the duty to accommodate imposed upon employers under the code," the court said. e court noted that employers didn't have an unrestricted right to request an IME, emphasizing that only "certain circumstanc- es" called for it. In this case, the OCSB had reasonable cause to request an IME because it had concerns over the reliability of the medical information it received from Bot- tiglia's doctor. As for Bottiglia's claim the OCSB had pro- vided misleading information to the IME psychiatrist, the court agreed with the tribu- nal that the OCSB provided mostly "factual background information" and there was no deliberate attempt to mislead the psychia- trist. In addition, the court noted that Bot- tiglia was free to communicate his own opin- ions to the psychiatrist as well. e court dismissed the appeal, agreeing with the tribunal that the OCSB's request for an IME was reasonable and it didn't discrim- inate against Bottiglia. For more information see: • Bottiglia v. Ottawa Catholic School Board, 2017 CarswellOnt 7627 (Ont. Div. Ct.). Duty to accommodate can include IME request « from COURT on page 1 CREDIT: J WALTERS/SHUTTERSTOCK

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