Date: 20000619
Docket: T-944-00
BETWEEN:
BRENDA JOHNSON-PAQUETTE AND FAMILY
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for an interlocutory injunction to prohibit, first the defendant from placing the plaintiff on disability and second, the reassessment of the plaintiff.
FACTS
[2] On November 18, 1999, the plaintiff was asked by Katalin Deczky, Director of Human Resources Development Canada, to make a medical appointment with officials of the Occupational Safety and Health Agency (old Health Canada).
[3] In her letter, Mrs. Deczky said:
| The reason I am requesting this is as a result of my concern for your welfare. It has become evident to me, upon review of your e-mails, letters voice messages and general behaviour that you are becoming increasingly agitated and stressed. |
| Therefore, I am instructing you to return home and to stay at home with pay until a medical appointment has been scheduled with the OSHA officials. You are also instructed to render yourself available for this appointment as soon as a time and date is provided. |
[4] On December 8, 1999, Dr. J. Lloyd-Jones, Medical Officer for Occupational Health and Safety Agency, wrote to the plaintiff to confirm an appointment with Dr. Gilles Melançon, Psychiatrist, on December 14, 1999.
[5] On February 7, 2000, Dr. J. Lloyd-Jones, sent a letter to Mr. Steve Shipley, Manager Staff Relations & OSH, relating to the assessment of Mrs. Paquette. In that letter, Dr. Lloyd-Jones made some recommendations:
| 1. We do not think Ms. Paquette should return to her previous position. |
| 2. We are making recommendations for treatment and follow-up for Ms. Paquette. |
| 3. We believe Ms. Paquette could return to a new position in a different area (i.e. new environment, new coworkers). During this reintegration she will be medically supported. |
| 4. We will be providing Ms. Paquette"s treating physician with the results of our assessment. |
| Should Ms. Paquette experience further difficulties at work, we would be pleased to see her again, at your request. |
[6] On February 23, 2000, the plaintiff wrote to Mr. Steve Shipley. In that letter the plaintiff said:
| I agree with the recommendations from OHS Agency and further I am requesting that my substantive position be moved from the Learning and Literacy Directorate, to a working environment which would give me a fresh start and further would prohibit the managers of the Learning and Literacy directorate from having any contact or influences with my new position or managers. |
| I further request that the position be in relations with computers. |
[7] On May 17, 2000, Dr. Lloyd-Jones wrote another letter to Mr. Steve Shipley, stating:
| Further to my letter of February 7, 2000, I have now obtained further medical information from Ms. Paquette"s treating specialist. On the basis of this new information, I wish to amend my previous recommendations. |
| We believe that Ms. Paquette is not presently able to meet the medical requirements of her position. She requires further treatment and monitoring before she is able to return to a new position. Her physician estimates this may take a period of 4 to 6 months. |
| We suggest that Ms. Paquette be referred back to our service for a reassessment when her physician indicates a readiness to return to work. |
[8] On May 30, 2000, the plaintiff filed a statement of claim for $10,000,000.00 in damages claiming particularly that the defendant acted in bad faith by advancing its own interpretations and negligence against the laws, policies and procedures in the work site and promoting interests which can only undermine the plaintiff and poison the work site. At the same time, the plaintiff filed and served this motion for an interlocutory injunction.
[9] On June 8, 2000, the Court began to hear the motion for the interlocutory injunction.
[10] The Court was told by the plaintiff that the letter of May 17, 2000, by Dr. Lloyd-Jones, was not accurate and that she could provide a report by her own doctor that would be more accurate.
[11] The hearing of the motion was adjourned until June 15, 2000 to allow the plaintiff to file and serve the new report by the doctor and also to allow the parties to talk to each other to see if the matter could be resolved.
[12] The plaintiff effectively filed a letter from Dr. Marion Koch with an affidavit of herself. This letter by Dr. Koch says:
| June 9, 2000 |
| To whom it may concern |
| Re: BRENDA JOHNSON |
| I am presently her treating physician and I consider her fit for work and school despite a prevailing illness. |
| Sincerely, |
| Marion Koch, M.D., FRCPC |
[13] I was told by counsel for the respondent that this letter was sent to Dr. Lloyd-Jones and given the fact that this letter was not detailed, Dr. Lloyd-Jones wanted to discuss the matter with Dr. Koch. However, the plaintiff strongly prevented Dr. Lloyd-Jones from doing that, arguing that this letter was speaking by itself and she had no confidence in Dr. Lloyd-Jones.
[14] I have asked counsel for the respondent whether they will modify the opinion expressed in the letter of May 17, 2000, if the latest evidence was presented to his client.
[15] Counsel for the respondent repeatedly mentioned that they were willing to amend their position if Dr. Lloyd-Jones was allowed full access to the plaintiff"s doctor to discuss her situation.
[16] To succeed on an interlocutory injunction, the plaintiff should demonstrate that she meets the tripartite test: she has to demonstrate that there is a serious issue, that she will suffer irreparable harm and that the balance of convenience favours the plaintiff.
[17] The Court decided to address the irreparable harm issue.
[18] The plaintiff suggests that she will suffer irreparable harm if the opinion of Dr. Lloyd-Jones, expressed in the May 17, 2000 letter, is not modified. At the same time, she is strongly opposed to her doctor, providing more information to Dr. Lloyd-Jones.
[19] At the very end of the May 17, 2000 letter, it is very clear that Dr. Lloyd-Jones will reassess the plaintiff as soon as the plaintiff"s physician indicates a readiness to return to work. But, at the same time, she needs a bit more details than the two line letter of Dr. Koch, dated June 9, 2000.
[20] It is up to the plaintiff to bring more evidence to allow the defendant to change their mind and to modify the recommendations included in the May 17, 2000 letter.
[21] The plaintiff also mentioned that if she gets some money from her claim, it will probably resolve the matter, although she believes that she will not get the $10,000,000.00 that she is claiming.
[22] Counsel for the respondent argued that the plaintiff had been placed on sick leave effective May 17, 2000 until June 1, 2000 and that she could apply for Sun Life Disability Insurance Benefits from that date until her medical situation is clarified.
[23] It seems obvious that it is not a situation where an interlocutory injunction is the proper remedy and even if I would take for granted that there was a serious issue, in my view, the plaintiff failed to demonstrate that there is an irreparable harm.
[24] Nevertheless, I will recommend that the parties get together to try to resolve the matter and counsel for the respondent demonstrated good faith and his readiness to make sure that the respondent would amend the recommendations made in the May 17, 2000 letter in light of new evidence that could be presented by the plaintiff.
[25] For these reasons, the motion for an injunction is dismissed without costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 19, 2000