On August 25, 2017, the Ontario Court of Appeal denied the leave to appeal application brought by Marcello Bottiglia (the “Applicant”), who sought leave from that court to appeal the Ontario Superior Court of Justice (Divisional Court) (the “Court”) decision in Bottiglia v Ottawa Catholic School Board released on May 19, 2017. A previous decision of the Human Rights Tribunal of Ontario (the “HRTO”) dated September 4, 2015, and a subsequent request for reconsideration at the HRTO, had dismissed the Applicant’s application for discrimination on the basis of disability, for being required to undergo an independent medical examination (“IME”) at the request of his employer, the Ottawa Catholic School Board (the “OCSB”). The Court’s May 19, 2017 decision denied the application for judicial review and, for the most part, confirmed the findings of the HRTO. This decisions of both the HRTO and the Court clarify when it is appropriate for an employer to require an employee to attend an IME, and when an employee can refuse to participate. The decision is relevant to charities and not-for-profits, as employers, with respect to this challenging issue of accommodating employees who may be suffering from illness or disability.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 408.