Law Times

Caution urged on national security bill BY DALE SMITH For Law Times T he government has tabled a massive omnibus bill to overhaul the country's national security regime, which will be debated this fall. Lawyers say they have concerns about how the bill addresses issues such as collection of personal in- formation, information sharing with other governments and how to help clients who find themselves on the no-f ly list. "If you've got a client who is a target of the service and the service is doing their job properly, you'll just never know about it, nor will the target," says Anil Kapoor of Ka- poor Barristers in Toronto. "A lot of this stuff is going to happen under the radar. The question is whether that architecture is sound." Nader Hasan, a partner at Stockwoods LLP in Toronto, says the bill is an improvement on the existing regime put in place by the previous federal Conservative government, known as Bill C-51. Hasan says that even with the changes, the current bill requires improvement. Part of the proposed legislation addresses the Passenger Protect Program, otherwise informally known as the no-f ly list. Kapoor says that one of the "chief deficiencies" of the legisla- tion is questions about how clients impacted by being on the list can pursue litigation to have them- selves removed. "[W]hether or not your client can come off of that list is impaired by the fact that there can be a closed process, where the government re- lies upon intelligence information to justify your client being on the list that your client never gets to see," he says. Kapoor, who is a special advo- cate under the security certificate regime, says there have been cases under the regime that were found to have been improperly issued. "A lot of that has been the result of the hard work of special advo- LAWYERS IN POLITICS Court of public opinion is what really matters P6 FOCUS ON Human Rights Law P8 PM #40762529 $5.00 • Vol. 28, No. 28 September 11, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M CHANGING BAIL Defence lawyers say pilot project is overdue P5 BY ALEX ROBINSON Law Times T he Ontario Court of Ap- peal has confirmed that employers can require employees to submit to an independent medical examina- tion by a doctor of their choosing in certain circumstances. The court dismissed a motion seeking leave to appeal a Division- al Court decision that found an employer is justified in requesting such an examination as part of the duty to accommodate. Employment lawyers say the decision clarifies when employers will be justified in requesting such an examination. "I don't think it should be inter- preted as, and I think they explicit- ly said that it's not, a free-standing right to ask for an [independent medical examination]," says Alli- son Greene, a partner with Karim- jee Greene LLP, who was not in- volved in the case. "But that when there is a rea- sonable basis for questioning whether or not the information provided by the employee is ad- equate to meaningfully engage in the accommodation process, then the employer might be justified in asking for an [independent medi- cal examination]." In Bottiglia v. Ottawa Catho- lic School Board, an employee, Marcello Bottiglia of the Ottawa Catholic School board, went on sick leave in April 2010 for stress and anxiety. When the board received con- f licting medical information, it requested that Bottiglia submit to an independent medical exami- nation. In June 2012, the board received a copy of a letter from a doctor that said Bottiglia required an extended period of time off work. Around two months later, Bottiglia's lawyer sent the board a letter saying his condition was improving and that the doctor be- lieved he would be able to return to modified work some time in the following two months. Bottiglia's paid time off work was set to come to an end in Oc- tober 2012. Bottiglia refused to submit to the independent medical ex- amination, resigning in 2012, and started an application under the Human Rights Code. He alleged the school board improperly re- quired him to attend the examina- See Ruling, page 2 Allison Greene says a recent Ontario Court of Appeal decision clarifies when employers will be justified in requesting an independent medical examination. Photo: Robin Kuniski Court dismisses leave application in IME case Paul Champ says there are provisions in Bill C-59 designed to help eliminate false posi- tives in the system, such as children who are routinely flagged. 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