Law Times

September 11, 2017

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Page 2 September 11, 2017 • Law timeS NEWS tion before resuming his duties and provided the examiner with misleading information. When his application was dismissed, the plaintiff sought judicial review from the Divi- sional Court, arguing that the tribunal was wrong not to con- sider evidence that arose after his application was brought. He also contended that the tribu- nal's decision was unreasonable. The Divisional Court dis- missed his application and found that the board was within its rights to request the examina- tion in this situation. "Contrary to the submission made on behalf of Mr. Botti- glia, the Tribunal's ruling does not mean that employees must submit to an IME as part of the accommodation process," Justice Gregory Ellies wrote in the decision. "The Tribunal did not hold that employers have a freestanding, unrestricted right to request an IME. Rather, the Tribunal held that, in certain circumstances, an employer will be justified in requesting that an employee attend an IME as part of the employer's duty to accom- modate." Greene says the takeaway for employees is that it is really important to provide adequate medical information and make accommodation requests that are specifically tailored for the position. "I think in this case the doc- tor admitted that he made boil- erplate recommendations for accommodation and that the doctor also wasn't familiar at all with the requirements of the position," she says. She says em- ployees can obviate the need for an independent medical exami- nation by providing compre- hensive information from their doctor and a sensible plan. Adrian Ishak, a partner with Rubin Thomlinson LLP, who was not involved in the case, says employees facing an examina- tion should agree to participate and then grieve later if it was re- quested improperly. "Really, you shouldn't be say- ing no to IMEs unless you're 150-per-cent sure that the em- ployer is not entitled to it," he says. "And even then, you're bet- ter off agreeing to it and then in- cluding that in your evidence of why additional damages should be awarded on the basis of the employer's abuse of its rights." Ishak says the decision is helpful as it somewhat clarifies when an employer has the right to request an IME. It also should make employers cautious about how to communicate with inde- pendent medical examiners so as not to end the accommodation process by improperly biasing the examiner's view of the em- ployee's condition, Greene says. Jason Tam, the lawyer acting for the Human Rights Tribunal of Ontario, declined to com- ment. A lawyer representing the employee declined to comment and the lawyers representing the Ottawa Catholic School Board did not respond to requests for comment. LT Continued from page 1 Ruling clarifies rights around requesting examination cates," says Kapoor. "Remark- ably, there's no provision for spe- cial advocates," he adds. Hasan agrees that the lack of special advocates to challenge the no-f ly list is a lost opportu- nity for the government. "Arguably, the main reason why the Supreme Court has held that the security certificate re- gime is not unconstitutional is the presence of the special advo- cate regime, and advocates and civil liberties groups have been calling for there to be a special advocates program with this no- f ly list for some time now," says Hasan. "It's a bit disappointing that the government has not seen fit to include this in its amend- ments." Kapoor says it's unfair that a person's liberty and their ability to travel can be restricted with- out them having a say in it. "Surely there should be some sort of allocation for their par- ticipatory rights by having a spe- cial advocate there to level the playing field," he says. Kapoor says the lack of spe- cial advocates makes no sense and will have to work its way back up to the Supreme Court of Canada. Paul Champ of Champ and Associates in Ottawa says that there are added provisions in the bill that are designed to help eliminate false positives in the system, such as children who are routinely f lagged. "They're going to create some kind of system where individu- als who are regularly stopped based on a false positive can get an identifier number from the minister of Public Safety so that they don't have those problems," says Champ, but he adds that it is merely a cosmetic change. "Instead of meaningfully ad- dressing the overall problem of the reliability or credibility of the listing regime, they've just tweaked it a bit to say don't wor- ry about children," says Champ. Hasan adds that no-f ly lists don't make sense given that the government already has the power to lay a criminal charge, seek a terrorist peace bond or make preventative arrest, and that having a list simply because the Americans do does not suf- fice. Champ agrees that there is insufficient information to jus- tify the need for such a list. "There is a lack of informa- tion about how pervasive this is," says Champ. "It's very difficult for people to assess in any way why we even have a regime like this in place . . ." Other changes in the bill in- clude scrapping the investigative hearings powers that were never used since their creation in 2001, and the creation of a new intel- ligence and national security oversight body that will be able to look across departments rath- er continue to have their increas- ingly co-ordinated activities be subjected to siloed oversight. LT Omnibus bill tackles security issues Continued from page 1 GET ALL YOUR CPD AT THE TORONTO LAWYERS ASSOCIATION 7 TH ANNUAL CURRENT TOPICS IN ETHICS AND PROFESSIONALISM Clients Make the Practice of Law Possible: How Much Influence Do They Have? Wednesday, October 18, 2017 4:30 p.m. - 7:45 p.m. ADVISING A BUSINESS: START-UP TO EXIT Wednesday, October 25, 2017 5:15 p.m. - 7:00 p.m. DEATH BY CHOICE: MEDICALLY ASSISTED DYING IN CANADA Thursday, October 26, 2017 5:15 p.m. - 7:00 p.m. | Register now or contact us at

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