NC-043 - Medical Discharge

The Appellant stopped working for medical reasons in November 2003. A few subsequent attempts to return to work were unsuccessful. In September 2006, the Appellant was suspended with pay, after which his medical status varied between unfit for an indefinite period, unfit for a definite period, fit for duty and, finally, fit for duty with restrictions. Beginning in 2014, the Force's Occupational Health Services obtained some medical reports concerning the Appellant's health condition. In January 2017, the Appellant's medical profile was modified to reflect that he was medically unfit for duty with the Force.

Shortly thereafter, a recommendation to medically discharge the Appellant was sent to the Respondent. On April 12, 2017, the Respondent sent the Appellant a Notice of Intent to Discharge (Notice of Intent). The Notice of Intent informed the Appellant of his right to submit a written response to the Notice of Intent and of his right to request that the Respondent be recused as the decision-maker. On May 27, 2017, the Appellant provided the Respondent with his written response, in which he requested that the Respondent be recused as the decision-maker. The Appellant supported this request by pointing out that the Respondent had previously served as the Employee Management Relations Officer (EMRO) and, in this position, had been involved in managing the Appellant's medical file.

The Respondent dismissed the recusal request and ordered the Appellant's discharge. The Appellant appealed the Respondent's decision.

The ERC found that the Respondent's decision to deny the request that he recuse himself violated the principles of procedural fairness. The Respondent had actively participated in managing the Appellant's medical file when he was the EMRO. This past involvement gave the impression that the Respondent, in his subsequent role as decision-maker regarding the Appellant's medical discharge, might have taken into account information and perceptions acquired in his role as EMRO. The Respondent had before him evidence of his own actions in the sequence of events that led to the Appellant's medical discharge. The ERC noted that the discharge process requires a high level of procedural fairness, which includes the right to an impartial decision-maker. The Respondent's prior involvement as the EMRO in the Appellant's file gave rise to a reasonable apprehension of bias and required that he recuse himself as the decision-maker.

The ERC recommended that the Adjudicator allow the appeal and remit the file to another decision-maker for a new decision.

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

[Translation]

The Appellant had been off work since November 2003, had a history of high absenteeism since he joined the RCMP, and was also suspended with pay on September 11, 2006. He was appealing the decision by the Officer in Charge of Administration and Personnel, "X" Division (OIC A&P/Respondent), to discharge him from the RCMP on the grounds that he was disabled within the meaning of the Canadian Human Rights Act (CHRA). It must be noted that in the years leading up to the medical discharge procedure, the Respondent was the Employee Management Relations Officer (EMRO), the EMRO in Charge of the Management of Occupational Health and Safety, "X" Division. Afterwards, in his capacity as the OIC A&P, he ended the Appellant's career in the RCMP, refusing to recuse himself from the discharge procedure, being of the opinion that his years as EMRO, where he had managed the Appellant's file, made him well informed of the particulars of the file. The Appellant claims that the impugned decision contravenes the applicable principles of procedural fairness, is based on "[translation] numerous errors of law" and is clearly unreasonable. In the Appellant's opinion:

Pursuant to section 17 of the Royal Canadian Mounted Police Regulations, 2014 (SOR/2014-281), the appeal was referred to the ERC. A careful review of the file allowed the Chairperson of the ERC to conclude that the Respondent/OIC A&P had in fact breached the principles of procedural fairness by dismissing the Appellant's request for recusal. As the OIC A&P, the Respondent maintained his authority over the file, claiming he was well informed of its history since in his capacity as EMRO he had actively participated in the management of the Appellant's medical file, thereby confirming the reason his impartiality was called into question.

Since the ERC was of the opinion that a procedural error had been made in the Respondent's decision, it recommended that the Adjudicator allow the appeal and remit the matter for a new decision. After reviewing the case, and without hesitation, the Adjudicator hearing the case endorsed the ERC's recommendation and allowed the appeal, remitted the file to the Commanding Officer, "X" Division, for a new decision, and directed the RCMP to reinstate the Appellant retroactively.