In the recent decision of Ziebenhaus v. Bahlieda1,
the Divisional Court had opportunity to consider the Court's
ability to order a party to undergo an examination. Specifically,
the issue was whether a judge of the Superior Court has the
authority in the exercise of his or her inherent jurisdiction to
order that a party be examined by a non-medical practitioner.
The Divisional Court decision related to the appeal of two
motions court decisions. In the Ziebenhaus v. Bahlieda
("Ziebenhaus") action, the plaintiff was ordered
to undergo a vocational assessment by a certified vocational
evaluator, who was selected by the defendants. In the Jack v.
Cripps and Reath ("Jack") action, the
plaintiff was ordered to undergo a functional abilities assessment
by a chiropractor, who was selected by the defendants.
In considering the above appeals, the Divisional Court
considered section 105 of the Courts of Justice Act, which
provides that where the physical or mental condition of a party to
a proceeding is in question, the court may, on motion, order the
party to undergo a physical or mental examination by one or more
health practitioners. A health practitioner is defined as a person
licensed to practice medicine or dentistry in Ontario or any other
jurisdiction, a member of the College of Psychologists of Ontario
or a person certified or registered as a psychologist by another
It was not disputed that the vocational assessment and
functional abilities assessment ordered by the motions courts
judges did not fall under the examination set out in section 105,
The Divisional Court considered the prior case law in this area
and noted that it reflected the fact that the health sciences have
evolved to encompass a far wider range of assessments than those
provided for in section 105, above. In many cases, reports by
non-medical practitioners address issues not addressed in
independent medical examinations or supplement medical opinions
The Divisional Court noted the prevalence of plaintiffs'
expert reports on future care costs and/or loss of future earnings
("future damages reports") in personal injury
The process of preparing a future damages reports in
personal injury actions now typically involves one or more
independent medical reports, on the basis of which an occupational
needs or a vocational assessment is conducted to identify long-term
care needs or vocational limitations and prospects, from which long
term care costs or a loss of future earnings can be
How can defendants respond to these reports?
The Divisional Court concluded that the Court can exercise its
inherent jurisdiction in ordering these examinations. In order to
be successful on a motion to have the plaintiff examined by a
non-professional, a defendant must demonstrate that such an
examination is necessary to enable a defendant to meet the
plaintiff's case in the interests of justice and trial
fairness. A necessary and important corollary of this rule is that
a court cannot order such an examination solely on the basis of
In other words, a defendant would not be successful in a motion
for an examination by a non-medical practitioner solely because the
plaintiff has retained a non-medical practitioner of that
speciality. The examination must be necessary to do justice between
the parties and secure a fair trial between them.
The motion judge's decision on the Ziebenhaus
action was upheld as the motion judge considered the correct legal
principles in reaching his decision. The decision in the
Jack action was overturned as the motion judge did not
undertake the legal analysis required by the case law, discussed
This decision will be of interest to defence counsel as it seems
to clarify the circumstances in which an examination by a
non-medical practitioner may be ordered. In the face of future
damages reports by plaintiffs' counsel, defendants will have
further options to respond by obtaining their own non-medical
experts. The focus will be on whether the examination is required
to ensure trial fairness and justice to the parties.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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