NC-101 - Medical Discharge

The Respondent ordered the Appellant to be discharged from the RCMP for having a disability, as defined by the Canadian Human Rights Act (CHRA). The Appellant had a very lengthy period of off-duty sick (ODS) and the Respondent made several attempts to try and accommodate the member. Several Graduated Return to Work (GRTW) were attempted by the RCMP but all of them were rejected by the Appellant for one reason or another. The Respondent also attempted on two occasions to send the Appellant to a major metropolitan area at public expense to work from there so that she could get the care she needed. The Appellant refused, for reasons that were personal and unrelated to her contract of employment. 

The Appellant was sent to an Independent Medical Examiner (IME) who subsequently opined that the Appellant was unlikely to be able to return to work in any capacity in the foreseeable future. This opinion was lengthy and was followed up with a second opinion after reviewing conflicting medical information provided by the Appellant’s physician and clinical psychologist. The IME’s reports remained the same as to diagnosis/prognosis and the Health Services Officer (HSO), after reviewing all of the medical information on the Appellant’s file, recommended a permanent O6 medical profile and determined that she was not able to return to work at the RCMP in any capacity for the foreseeable future.

The Appellant was provided and made submissions through her counsel in respect of a Notice of Intent to recommend her discharge. The Appellant submitted, among other points, that she was not accommodated by the RCMP up to the point of undue hardship; that the assignment of an O6 permanent medical profile and ultimate discharge was clearly unreasonable based on the evidence before the Respondent; and that the Respondent failed to consider new medical evidence provided by the Appellant post-decision. The Appellant submitted that it was the responsibility of the RCMP to pay her for losses that she would suffer on the sale of her home in order for her to move to the intended place of duty established by the RCMP.  Further, the Appellant stated that she could not return to her current place of duty without providing an explanation as to exactly why to her superiors. Finally, the Appellant was difficult to reach along and after the discharge process and often did not respond to communications from the RCMP.

The Appellant appealed the decision to discharge her on the basis of a disability. The Appellant indicated that the Respondent did not follow the rules of natural justice and did not provide her with procedural fairness by not disclosing medical information not privy to the Respondent and by not considering recent and conflicting medical evidence; that the decision erred in law by not following the Canadian Human Rights Act (CHRA) and RCMP policy; and that the decision was clearly unreasonable and not supported by all of the evidence.   

In respect of procedural fairness, the Appellant submitted that the Respondent should have disclosed notes between the HSO and the IME which the Respondent did not do, due to the fact they were not part of the record before the Respondent who also indicated that he did not have access to the Appellant’s medical file. Second, the Appellant indicated that the Respondent failed to consider new medical information brought forth prior to his decision to discharge her. Further, the Appellant argued that the Respondent did not make the decision to discharge the member: it was in fact made by the HSO/IME. The allegation was that the Respondent could not, in law, delegate this power. Finally, the Appellant further submitted that the Respondent would not consider new medical evidence presented by her post decision but before the decision was served raising the view that the Respondent was not functus.

First, the ERC found that the medical information submitted prior to the decision was examined by both the IME and the HSO and it was determined that this did not change the recommended O6 permanent medical category with the stated employment restrictions/limitations. The Respondent had every right to rely on the given medical profile. Second, the Respondent was not legally obliged to go on a fishing expedition and make inquiries regarding documents that may or may not have been produced and were not before him. The Appellant was made well aware that the medical information was considered by the IME/HSO. This in no way impaired the Appellant’s ability to make a full answer and defence.

In respect to delegating his authority to discharge the Appellant, the HSO/IME had no legal authority to discharge the member and the legal authority to do so rested and remained with the Respondent.    

Finally, the ERC determined that in accordance with subsection 12(3) of the CSO (Employment Requirements), the decision took effect immediately upon signing it and the Respondent was functus officio in respect of considering additional medical evidence post decision. 

The ERC reviewed the CHRA and cited many provisions of RCMP policy, including the Disability Management and Accommodation Program Manual and found that there was a legal basis to discharge the Appellant on medical grounds and that such policy was in fact in accordance with the CHRA

With respect to whether or not the decision was clearly unreasonable, the ERC found that it was not. The ERC found that the Appellant was in fact accommodated up to the point of undue hardship. Of prime importance in this case, was the fact that the Appellant frustrated the RCMP’s efforts to find a solution to help her, for reasons that were irrelevant to this process.

The ERC recommended that the Commissioner dismiss the appeal. 

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

The Appellant went on medical leave in January 2014. In February 2015, she was deemed fit for operational duties, with restrictions and limitations, for the foreseeable future. However, on July 29, 2015, she was deemed temporarily unable to work for the RCMP in any capacity.

In 2016, the Appellant was transferred to a metropolitan area to be closer to her medical professionals; she was provided two years to do so but never reported because she was unable to sell her home without incurring a significant loss.

Meanwhile, in 2017, the Appellant’s medical profile was changed to allow for the accommodation process to resume. The Appellant refused to consider temporary accommodation at her home detachment as she claimed it would be counterproductive to her health. In June 2018, the Appellant also refused graduated return to work options outside her home detachment, inclusive of a Force vehicle, travel time, kennel services, and accommodations. Later, in November 2018, a restriction from working at her home detachment was added to the Appellant’s medical profile.

Based on the difficulty of navigating the Appellant’s limitations and restrictions, the RCMP ordered an independent medical evaluation (IME) in February 2020. The Appellant’s medical profile was changed to reflect that she was permanently unable to return to work with the RCMP, in any capacity, pursuant to the IME report. The Appellant refused to be voluntarily discharged following the examination, so the Respondent subsequently medically discharged the Appellant, effective July 16, 2021.

The Appellant appealed alleging, inter alia, that the Respondent: failed to establish that the RCMP accommodated her to the point of undue hardship; did not consider all facts regarding her medical condition; issued the decision based on an error of law; and, made findings that are clearly unreasonable.

The Adjudicator was not persuaded that the RCMP had failed in its obligation to accommodate the Appellant, and found that there was no breach of procedural fairness or errors of law, and that the decision is not clearly unreasonable. The appeal was dismissed.