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When Can you Insist that your Employee attend an Independent Medical Exam

An important decision was released during May in Ottawa-based lawsuit Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517, this time favourable to employers, on the issue of when an employer is entitled to insist that its disabled employees submit to an independent medical examination (“IME”) to evaluate the extent to which they are medically capable of fully returning to work.

In this particular case, the Ontario Divisional Court ruled that employers are legally entitled to insist that their employees submit to IME’s in two circumstances: (i) when such obligation is stipulated in the employment contract; or (ii) when the employer has reasonable grounds to question the adequacy and reliability of the medical information that it has received from the employee. The Court ruled that, in this particular case, the School Board had been justified in insisting that its employee submit to an IME because the contradictory prognoses that the employee and his physician had produced constituted a reasonable and bona fide reason for questioning the adequacy and reliability of the medical prognoses.

However, the Court also raised several important caveats to this principle. It stated that before an employer insists that its employee attend an IME, it must ordinarily first try to obtain the information it wants from the employee’s own doctor and can only insist on an IME where it cannot reasonably expect the employee’s own doctor to reliably provide that information. The Court also stated that an employee is legally entitled to refuse to attend an IME where the employer provides the independent doctor with information that “might reasonably be expected to impair [his] objectivity”.

Ultimately, should a sick or disabled employee refuse to attend an IME (which the employer has requested because it reasonably doubts the reliability of the information provided to it), without any valid reason for doing so, then the employee will be in breach of his legal duty to cooperate with the employer’s attempts to accommodate his or her illness or disability.

This decision illustrates just how carefully employers must now tread when deciding whether or not to have recourse to an IME in 2018. A prudent employer may wish to insert into its employment contracts a clause requiring employees to submit to future IME’s in certain circumstances. If the employee signs the contract containing such a clause, his employer will subsequently be legally entitled to force him to co-operate with future IME’s if he wishes to keep his job.