Does the Court have jurisdiction to Order a party to
undergo an assessment by someone who is not a "health
practitioner"? The Court of Appeal says yes.
In the 2015 decision of the Court of Appeal, Ziebenhaus v.
Bahlieda, the appellant sustained a head injury while skiing
on a school trip. He claimed damages for future income and a loss
of competitive advantage. Appellant's counsel arranged for a
neuropsychological and psychovocational assessment. The reports
concluded that the Plaintiff's ability to pursue competitive
work was guarded.
The respondent Mount St. Louis Moonstone wanted the appellant to
undergo another vocational assessment by an assessor it had chosen.
A motion was brought to compel attendance at this assessment and
the motion relief was granted. The decision was appealed to the
Divisional Court and the order was affirmed. It was agreed that the
Court had inherent jurisdiction to order assessments and
examinations not specifically addressed by s. 105 of the Courts
of Justice Act.
Section 105 states as follows:
105. (1) In this section, "health practitioner" means
a person licensed to practise 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
(2) Where the physical or mental condition of a party to a
proceeding is in question, the court, on motion, may order the
party to undergo a physical or mental examination by one or more
(3) Where the question of a party's physical or mental
condition is first raised by another party, an order under this
section shall notbe made unless the allegation is relevant to a
material issue in the proceeding and there is good reason to
believe that there is substance to the allegation.
(4) The court may, on motion, order further physical or mental
(5) Where an order is made under this section, the party
examined shall answer the questions of the examining health
practitioner relevant to the examination and the answers given are
admissible in evidence.
Section 105 was also assessed alongside Rule 33 of the Rules
of Civil Procedure, which states:
Motion for Medical Examination
33.01 A motion by an adverse party for an order under section
105 of the Courts of Justice Act for the physical or
mental examination of a party whose physical or mental condition is
in question in a proceeding shall be made on notice to every other
party. R.R.O. 1990, Reg. 194, r. 33.01.
It was agreed that a vocational assessor is not a health
practitioner as defined by s. 105.
However, the Court of Appeal found that the Divisional Court had
properly addressed that the Court can "exercise its inherent
jurisdiction to order such an assessment, to ensure justice between
the parties is done." It was recognized that health sciences
and patient care has expanded and includes experts who are
"health practitioners". It was also acknowledged that
there is a gap in the language contained in section 105 and it is
likely this section will be amended soon to encompass the expanded
definition. Furthermore, the Court acknowledged that the principle
of fairness had to be taken into account and that it would be
unfair for the respondent not to be able to have the appellant
undergo a vocational assessment.
This is a useful decision to keep in mind the next time counsel
on the other side is trying to adhere to a strict interpretation of
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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