NC-030 - Medical Discharge

Upon becoming a member, the Appellant was posted to a province where she spent her entire career. She was beset by and treated for numerous medical issues over the next decade. After being off duty sick for over two years, the Health Services Officer (HSO) assigned to her the medical profile of Permanent O6, meaning she could not return to any RCMP duties in the reasonably foreseeable future. She was also told that a discharge process may be engaged. This stunned her, as she believed health records had been sent to the RCMP in support of her return to work.

The Appellant's practitioner wrote a letter to the HSO, which the Appellant quoted as stating that her health was improving and that she could return to work imminently. The Force nevertheless commenced medical discharge proceedings during which the Appellant's practitioner wrote the HSO another letter which the Appellant quoted as stating that the Appellant could return to work imminently to perform restricted duties and possibly, in further time, full duties. The HSO did not believe this letter contained sufficient clinical evidence to justify a change in his medical opinion.

The Respondent issued an Order to Discharge the Appellant, reasoning that her disability would continue to prohibit her from satisfying basic employment obligations and that the RCMP met its duty to accommodate her disability to the point of undue hardship. The Respondent indicated that he accepted the HSO's evidence. He added that, as a result of the apparent opinion of the Appellant's practitioner, he spoke with the HSO shortly before completing his Decision and was assured by the HSO that, among other things, the Appellant's medical profile remained justified.

The Appellant presented an appeal in which she relied, in part, on her practitioner's two letters.

The ERC found that the practitioner's letters were admissible on appeal, as the Appellant took reasonable steps to have them placed before and examined by the Respondent. The ERC then dealt with the merits of the appeal. To begin, it found that the Respondent contravened a principle of procedural fairness by basing his Decision, in part, on information he obtained during a private conversation with the HSO without first disclosing to the Appellant that he had obtained such information or offering her an opportunity to address it. Second, the ERC found that the Respondent did not breach the principle delegatus non potest delegare, as it was clear that he made the Decision himself. Third, the ERC found that neither the Respondent nor the record adequately explained why the HSO's clinical evidence was preferred over that of the Appellant's practitioner. This omission to address conflicting evidence central to the outcome of the matter rendered the Decision clearly unreasonable and also resulted in an erroneous finding that the Force had accommodated the Appellant's disability up to the point of undue hardship.

The ERC recommended that the appeal be allowed and that the Decision be quashed. It further recommended that the matter be remitted to a new decision-maker, with specific directions, on the basis that the Respondent contravened a principle of procedural fairness by privately speaking with and accepting information from the HSO, the full contents of which the Appellant likely cannot ever know or reply to.

The Commissioner's decision, as summarized by her office, is as follows:

The Appellant was absent from duty from November 19, 2014, until her discharge on July 12, 2017. At the time, she knew the RCMP had on hand health documentation that supported her return to work. In fact, the Appellant's care providers had sent letters to RCMP Health Services indicating the Appellant's health was improving, her return to work imminent, her eventual return to full operational duties anticipated. Notwithstanding, the Respondent proceeded with the discharge process. Once served with the Notice of Intent to Discharge a Member (NOI), the Appellant requested a meeting with the Respondent which was not granted, the Respondent offering no reasons for his decision, as required. The Appellant subsequently submitted a 25-page response to the NOI, in vain, as the Respondent issued the Order to Discharge effective July 12, 2017, but not without first speaking with the HSO without informing the Appellant of the consultation or of the actual information sought and received.

On Appeal, the Appellant argued that the Respondent's decision was reached in a manner that contravened the applicable principles of procedural fairness, that it was based on an error of law and that it was clearly unreasonable.

The ERC found: "The Respondent contravened a principle of procedural fairness by basing his Decision, in part, on information he obtained during a private conversation with the HSO without first disclosing to the Appellant that he had obtained such information or offering her an opportunity to address it". The ERC also found the Respondent failed to provide sufficient reasons for his decision as "neither the Respondent nor the record adequately explained why the HSO's clinical evidence was preferred over that of the Appellant's practitioner. This omission to address conflicting evidence central to the outcome of the matter rendered the Decision clearly unreasonable and also resulted in an erroneous finding that the Force had accommodated the Appellant's disability up to the point of undue hardship".

The ERC recommended that the appeal be allowed, the Decision quashed and the matter remitted to a new decision-maker.

The Appeal Adjudicator agreed with the ERC recommendations, quashed the Respondent's decision, allowed the Appeal, reinstated the Appellant's pay and allowances and directed the Commanding Officer for "X" Division be seized with the matter.