On June 24, 2015, the Ontario Court of Appeal released its
decision in Ziebenhaus v. Bahlieda, upholding the
Divisional Court's ruling that Superior Court judges may order
the examination of a party by a non-health practitioner.
This appeal arose in the context of a personal injury action. At
issue was whether the Superior Court of Justice has the inherent
jurisdiction to order a party to undergo an assessment by an expert
who is not a "health practitioner" as defined in section
105 of the Courts of Justice Act ("CJA"). In
this particular case, the defendants sought to compel the plaintiff
to undergo an assessment by a vocational assessor.
Section 105 of the CJA and Rule 33 of the Rules of Civil
Procedure set out the statutory scheme by which a Court may
order the examination of a party by a "health
practitioner" when the physical or mental condition of a party
is in issue. However, a vocational assessor is not a "health
practitioner" as defined in s. 105.
At first instance, the motions judge ordered the plaintiff to
undergo examination by the vocational assessor. The motion
judge's decision was upheld by the Divisional Court upon appeal
by the plaintiff.
The Court of Appeal agreed with the Divisional Court that there
is a gap in the statutory scheme that does not account for the wide
range of assessments by experts who are not "health
practitioners," but who are nonetheless routinely involved in
both the care and treatment of injured persons and in litigation as
well. The Court of Appeal agreed with the Divisional Court's
analysis and confirmed the Court's inherent jurisdiction to
order a non-health assessment where one is required to allow the
defendant to meet the plaintiff's case.
The Court of Appeal noted that fairness and justice are the most
important considerations in determining whether an assessment
should be ordered, but cautioned that the Court's inherent
jurisdiction "should be exercised only sparingly and in clear
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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