In a decision released on April 2, 2014, the Divisional Court
affirmed the Court has inherent authority to order a plaintiff to
attend a "non-medical" assessment.
The case dealt with two different actions where defendants had
sought to have assessments completed by persons who were not health
practitioners. In Ziebenhous v. Bahlieda the
defendant wished to conduct a Vocational Assessment. In
Jack v. Cripps the defendants wished to conduct a
Functional Abilities Evaluation. In both cases the defendants
were successful on motions seeking to have the assessments
The Divisional Court noted that assessments will not be
immediately ordered on the basis of "matching," i.e. that
a plaintiff had an FAE conducted, and therefore the defendant is
entitled to have an FAE conducted. Rather, assessments will
only be ordered where a defendant can demonstrate it cannot meet
the plaintiff's case without the requested examination being
Interestingly the Divisional Court only upheld one of the
In Ziebenhous, the plaintiff was going to rely on the
neuropsychological and psycho-vocational assessment of Dr.
Voorneveld. In response the defendants wished to rely on a
neuropsychological report of Dr. St.-Cyr, as well as a vocational
assessor. The motions judge had indicated Dr.
Voorneveld's report not only addressed the impairment caused by
the traumatic brain injury suffered by the plaintiff, but also the
supports required by the plaintiff to support him within an
occupational setting. Dr. St.-Cyr had addressed the
impairments caused by the injury, but did not address the
consequences of those impairments on the plaintiff's vocational
pursuits. As such it was reasonable to order the plaintiff to
undergo a vocational assessment.
In terms of the action by Jack, the plaintiff had
obtained an FAE report, but had objected to the defendants
obtaining an FAE report. The defendant in the Jack
action had obtained a defence medical report from a Dr. Clifford, a
physiatrist, in which the doctor opined that the plaintiff had no
restrictions or limitations that would prevent a full return to
work. The Divisional Court held that, since the defendants
were taking the position the plaintiff could have returned to work
already, the FAE was not necessary for trial fairness. In
making this decision, the Divisional Court noted, among other
things, that the defendants had failed to put forward evidence to
show that the proposed FAE was necessary in order to ensure trial
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