NC-118 - Medical Discharge
The Appellant joined the RCMP as a regular member in 2009. He had periods of Off Duty Sick (ODS) in 2015 and was ODS from 2018 until the date of his discharge on medical grounds in 2022. An independent medical examination was completed and updated in early 2022. That examination determined that the Appellant had a very low probability of being able to return to meaningful work within the RCMP and for a sustained period (between 5% and 25%).
In spite of this, the Appellant’s health care team deemed him ready to return to work as early as December 2021. This was confirmed again in February 2022. However, the Appellant remained ODS until the date of his discharge.
During the discharge process and after the Respondent received information and submissions from the Appellant, pursuant to the Notice of Intent to Discharge a Member, the Respondent, on her own initiative, wrote to the Health Service Officer (HSO) with a series of questions. These questions were replied to by the HSO who also included additional information. At no time did the Respondent inform the Appellant of this communication. The Respondent used these responses to formulate her discharge decision, and included the information as Annex 1 to her Record of Decision.
The Appellant was subsequently discharged and he appealed the Decision. He argued that the Decision was procedurally unfair and undermined by errors of law and was clearly unreasonable.
ERC Findings
The ERC found that the Respondent breached the Appellant’s right to be heard. Since the Appellant’s employment in the RCMP was at stake, a high degree of procedural fairness was required. On this ground alone, the Decision needs to be set aside.
Further, the ERC found that the Decision was clearly unreasonable. There was conflicting medical evidence that the Independent Medical Examiner (IME), the HSO and the Respondent did not address. There was no evidence that the Appellant’s treating clinician’s latest medical report was received by the HSO, let alone considered in his assessment of the medical profile.
Finally, in light of the information provided by the Appellant’s medical team (especially the report dated February 26, 2022), and the failure of the HSO and Respondent to deal with this report in a satisfactory manner in the record, the ERC finds that the decision was clearly unreasonable.
ERC Recommendations
The ERC recommended that the Appeal be allowed; the Decision be set aside; the Appellant be reinstated into the RCMP with retroactive pay and allowance since the date of his discharge.
Commissioner of the RCMP Decision dated July 12, 2023
The Commissioner’s decision, as summarized by his office, is as follows:
In 2018, the Appellant went Off Duty Sick (ODS) and remained in that capacity. He had been ODS for significant periods before then. The Independent Medical Examiner (IME) and the “X” Division Health Service Officer (HSO) found that because of the Appellant’s medical condition, he would not be able to return to the workplace in the foreseeable future. The HSO assigned the Appellant a permanent O6 medical profile. The Appellant’s attending medical team had different views in respect to his prognosis.
The administrative discharge process on the basis of a disability was initiated. On September 6, 2022, after review of the matter and the Appellant’s submissions, the Respondent ordered the Appellant’s discharge.
The Appellant appealed that Respondent’s decision on the basis that the decision was reached in a procedurally unfair manner, is based on errors of law, and is clearly unreasonable.
The Appeal was referred to the ERC for review, pursuant to subparagraph 17(d)(ii) of the Royal Canadian Mounted Police Regulations, 2014. The ERC recommended that the appeal be allowed. The ERC found that the Respondent’s decision was reached in contravention of the applicable principles of procedural fairness when the Respondent sought ex parte information from the HSO, which was not put to the Appellant for his submissions. Furthermore, the ERC found that the Respondent’s decision is clearly unreasonable because a medical report was apparently overlooked and not addressed by the HSO and the Respondent.
The adjudicator agreed with the ERC’s Findings and Recommendations. The adjudicator concluded that the Respondent’s decision was indeed reached in contravention of procedural fairness and that it is clearly unreasonable. The appeal was allowed.
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