NC-110 - Medical Discharge

The Appellant was on approved medical leave since June 2017. The Health Services Officer  (HSO) reviewed the Appellant’s medical file and changed the Appellant’s medical profile to a temporary O6. This medical profile meant that the Appellant could not perform any duty within the RCMP on a temporary basis. A few months later, the HSO contacted a medical professional who had attended to the Appellant in June 2017. Upon review of this medical professional’s report, the HSO modified the Appellant’s medical profile to a permanent O6. This designation triggered the medical discharge process.

After receiving the Notice of Intent to Discharge (NOI), the Appellant requested further disclosure and an in-person meeting with the Respondent. He also made several access to information requests. The Appellant was provided with some disclosure he requested while some other were considered irrelevant to the process. The Respondent denied the Appellant’s request for a meeting, explaining that an in-person meeting is not an opportunity for the Appellant to air all his grievances against the RCMP. In his response to the NOI, the Appellant argued that the Force had not met its duty to accommodate him because the HSO’s opinion was not based on his usual health care provider’s assessment. After stating the governing principles regarding non-culpable absenteeism and undue hardship, counsel argued that, by failing to consult with the Appellant’s treating medical professionals, the Force only made negligible efforts to accommodate the Appellant. With his response, the Appellant filed a letter from his treating medical professional which stated that she had not completely ruled out a gradual return to work. However, she recommended a “calm exit” for the Appellant from the RCMP. The Respondent found that there was no evidence that the Appellant could return to duties within the RCMP in the foreseeable future. Both of his health care providers were of the opinion that it would be best for the Appellant not to return to the RCMP.

The Appellant appealed the Respondent’s decision. He reiterated that the Force had not met its duty to accommodate him. During the appeal process, the Appellant made several requests for disclosure, challenged the appointment of the Respondent’s Representative and argued that he was being denied representation to not only address his appeal, but also his medical discharge process. 

The ERC first found that the hiring of the Respondent’s Representative did not breach the statutory freeze when an employee’s association requested accreditation. Likewise, the Administration Manual – Grievances and Appeals permitted the Respondent to name a representative of her choice. Lastly, because the representative was a non-practising lawyer, her hiring did not breach the Department of Justice’s sole authority to provide legal advice to departments. The ERC found that there was no evidence that the Appellant was barred from being represented. Although his chosen representative did not receive the approval of his Line Officer, the Appellant could have chosen another representative. Further, the Appellant’s response to the NOI and his first submission on appeal were provided by his legal counsel. On the issue of disclosure, the ERC found that the Appellant’s requests for disclosure amounted to a fishing expedition because he had not explained the relevance of the disclosure requested. The ERC found that the Appellant had received the disclosure necessary to respond to the NOI and for the appeal. On the merits of the appeal, the ERC found that, although the Force had not consulted with the Appellant’s actual health care provider, the Appellant had not provided a report by this individual at the time he was informed of the change of medical profile. There was no conflicting medical evidence because both health care professionals opined that the Appellant would benefit from exiting the RCMP. Because the Appellant was unfit for any duty for the foreseeable future, the RCMP did not breach its duty to accommodate short of undue hardship. 

The ERC recommended that the appeal be dismissed. 

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

The Appellant went on medical leave for the final time on June 2, 2017. On January 25, 2018, the Health Services Officer (HSO) changed the Appellant’s medical profile to a temporary O6. Then, on April 13, 2018, the HSO reviewed the Appellant’s medical file and assigned him a permanent O6 – meaning that the Appellant was unfit for any duties in the RCMP within the foreseeable future. Ultimately, the Respondent medically discharged the Appellant, effective February 6, 2019.

The Appellant appealed alleging, inter alia, that the RCMP: denied him representation while the Respondent was represented by someone with legal knowledge; denied disclosure of relevant documents; and, failed to meet the duty to accommodate up to the point of undue hardship. The Appellant also argued that the Respondent’s decision contained errors of law, breached his right to procedural fairness by refusing to hold an in-person meeting with him and demonstrated a reasonable apprehension of bias.

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.