NC-054 - Medical Discharge

The Appellant joined the RCMP as a regular member in 2001. Between 2008 and 2014, his career was interrupted by medical issues that resulted in three periods of Off Duty Sick leave. However, each time he returned to work and was placed in a new position or office, he received a positive performance review. In one instance, he was promoted.

In early 2015, an independent doctor contracted by the RCMP surprised the Appellant and his medical practitioners by diagnosing the Appellant with an illness and recommending a specific treatment. A Force Health Services Officer (HSO) placed a related restriction on the Appellant's medical profile. This prevented him from "making unsupervised decisions in cases, files or situations which would have consequences if the file is mismanaged". The Appellant's overall health worsened. In late 2015, he went Off Duty Sick for the fourth and final time.

The Appellant developed a serious condition and was hospitalized in 2016. While he was recovering, the Force tried to contact him several times. He explained that, for several reasons, he could not reply. In 2017, his medical practitioners reported that he could return to work at a desk job. The HSO disagreed. In mid-2017, she changed his medical profile to O6. This meant he could not return to work in any role for the reasonably foreseeable future.

The Force initiated a medical discharge proceeding. The Respondent collected evidence twice from the HSO without letting the Appellant know. She went on to discharge the Appellant, partly on the basis of the evidence she privately obtained from the HSO. The Appellant appealed this decision. He argued that it was procedurally unfair and undermined by errors of fact and law.

The ERC agreed with the Appellant's arguments. The Respondent clearly and irreparably breached the Appellant's right to be heard by relying on privately-obtained evidence without giving the Appellant a chance to address it. This was particularly troubling because the Appellant's employment was at risk and a high standard of justice was therefore required. The Respondent also made a reviewable error by omitting to explain why she preferred the HSO's medical evidence over the conflicting medical evidence of the Appellant's medical professionals. Finally, the Respondent made a reviewable error by describing the law surrounding the duty to accommodate in incomplete terms and then misapplying that improperly stated law to the facts.

The ERC recommended that the appeal be allowed, the Decision be voided and the Appellant be reinstated and remunerated retroactive to the date of the Discharge Order. It also recommended that, should the Force initiate another discharge process against the Appellant, the case be remitted to a new decision-maker, with the following directions: (1) permit the Appellant to address the privately-obtained evidence, (2) invite the Appellant to offer any up-to-date medical evidence available to him; and (3) ensure that any conflicting evidence is properly addressed and that a key part of the law involving the duty to accommodate is properly applied.

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

After joining the Force in 2001, the Appellant faced several medical issues which resulted in four separate periods of sick leave beginning in April 2008. On July 25, 2017, the RCMP Health Services Officer changed the Appellant's medical profile to O6. Discharge proceedings were initiated on September 4, 2017, ultimately leading to the Respondent's decision to issue an Order to Discharge effective April 16, 2018.

The Appellant appealed and argued that the Respondent's decision was procedurally unfair and clearly unreasonable, and that the Force had failed to establish that it accommodated him to the point of undue hardship.

The appeal was referred to the ERC for review pursuant to paragraph 17(d)(i) of the Royal Canadian Mounted Police Regulations, 2014. The Chairperson of the ERC recommended that the appeal be allowed.

The Adjudicator was not persuaded that the RCMP had accommodated the Appellant to the point of undue hardship and found that the Respondent's decision was both procedurally unfair and clearly unreasonable. The appeal was allowed.