The Divisional Court recently held that a Superior Court Judge
has inherent jurisdiction to order a party to be examined by a
This issue arose in the context of two separate actions in which
the plaintiffs sustained serious injuries. The defendants in
Ziebenhaus v. Bahlieda ("Ziebenhaus") were
successful on a motion requiring the plaintiff to undergo a
vocational assessment by a vocational evaluator, and the defendants
in Jack v. Cripps ("Jack") were successful on a
motion requiring the plaintiff to undergo a functional abilities
evaluation by a chiropractor. The plaintiffs in both actions
appealed these orders to the Divisional Court. The Divisional Court
upheld the order in Ziebenhaus, but set aside the order in
This decision addresses section 105 of the Courts of Justice
Act ("CJA") and Rule 33 of the Rules of Civil
Procedure which set out the statutory scheme whereby a Court
may order a party to undergo a physical or mental examination by a
"health practitioner" where the physical or mental
condition of a party is in question. The CJA defines
"health practitioner" as a person licensed to practise
medicine or dentistry, a member of the College of Psychologists or
a person certified or registered as a psychologist by another
jurisdiction. It was not disputed that the two proposed evaluators
in Ziebenhaus and Jack were not "health
practitioners" under the CJA.
Ultimately the Divisional Court concluded that judges of the
Superior Court of Ontario have the inherent jurisdiction to order a
party to undergo a physical or mental examination by a person who
is not a "health practitioner" as defined in section 105
of the CJA. Section 105 is permissive and does not
expressly state that a Court is prevented from ordering a physical
or mental examination in circumstances other than those in section
105. The Divisional Court recognized that there is a gap in section
105 in that it does not make provisions for the sorts of
examinations which are routinely used in the care and treatment of
injured persons and in litigation, but are not conducted by
"health practitioners" as defined in the CJA.
Health sciences have evolved to encompass a far wider range of
assessments than those provided by a "health
practitioner." These include vocational assessments,
functional capacity evaluations and workplace assessments provided
by non-medical professionals such as occupational therapists,
rehabilitation therapists, vocational assessors, future care costs
experts and other specialists.
In determining whether to exercise its inherent jurisdiction to
order a party to be examined by a non-health practitioner, the
Court must consider the extent to which such an order is required
to satisfy the principles of trial fairness and justice. In this
regard, the Divisional Court stated that the "principal and
necessary basis for such an order would be demonstration that a
defendant cannot adequately meet the plaintiff's case without
such an examination." In addition, the Divisional Court
expressly rejected the practice of ordering an examination solely
on the basis of a principle of "matching". That is, a
defendant would not be entitled to a particular type of examination
simply to match an opinion delivered by a plaintiff.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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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