Canada: Not Occupying The Field, But Covering All Ground – The Court's Inherent Jurisdiction To Order Assessments By "Non Health Practitioners"


The overwhelming majority of cases arising from personal injury involve not only a claim for general damages, but a claim for alleged loss of income and/or loss of competitive advantage. The legislation provides clear authority for the Court to order that a plaintiff attend an examination with a "health practitioner" to assess their physical or mental condition, but what authority does the Court have to order an assessment with assessors with expertise in determining the vocational consequences, if any, for a plaintiff?

The Ontario Court of Appeal has recently answered this question in the decision of Ziebenhaus v. Bahlieda.1

In Ziebenhaus, the plaintiff was injured on a school trip at a ski resort. He allegedly suffered a brain injury as a result. Of importance, he claimed damages for loss of future income and loss of competitive advantage. Plaintiff counsel arranged for a neuropsychological and psycho-vocational assessment. The resulting report stated that the plaintiff's vocational potential and ability to pursue competitive work were "guarded".

The defendant ski resort wanted the plaintiff to attend a defence vocational assessment. Section 105 of the Courts of Justice Act, in conjunction with Rule 33 of the Rules of Civil Procedure, specifically permits the court to order a party to undergo a physical or mental examination by a "health practitioner", which 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 jurisdiction.2

The parties agreed the vocational assessor proposed by the defendant was not a "health practitioner". However, plaintiff counsel argued that section 105 "occupies the field", defining the parameters of the Court's authority, and that an order for examination by an individual who is not a "health practitioner" would be contrary to the intent of the legislation.

The Motion's Judge found in favour of the defendant and ordered the plaintiff to attend the vocational assessment. This decision was confirmed by the Divisional Court. In so finding, the Divisional Court affirmed that the Court has inherent jurisdiction to order assessments and examinations not specifically addressed by section 105 of the Courts of Justice Act.

Court of Appeal Decision

The Court of Appeal confirmed the decision of the Divisional Court, and reiterated that section 105 does not "occupy the field". Health sciences and patient care have evolved to include a wide range of assessments by experts who are not "health practitioners". Precluding their use in the litigation context would be contrary to good public policy.

Further, the inherent jurisdiction of the Court is a significant and effective basis for preventing the abuse of process and ensuring fairness in the trial process. Accordingly, the inherent jurisdiction of the Court can only be removed by clear and precise statutory language.

The language of relevant provisions does not constitute such clear and precise language. First, the provisions are permissive. Section 105 does not state that a Court cannot order an examination by someone who is not a "health practitioner". Second, the Court's inherent jurisdiction to or such an examination odes not conflict with the relief available under section 105. The Court of Appeal stated that their inherent jurisdiction should not be seen as extending the reach of that section.

That being said, the Court of Appeal indicated that inherent jurisdiction should be used sparingly, and should only be exercised in clear cases. The decision of the Motion Judge to invoke the inherent jurisdiction of the Court was upheld in this decision as it was necessary "in the interest of fairness" as it was required by the defendant to meet the plaintiffs' case.


The Ontario Court of Appeal has confirmed the inherent jurisdiction of the Court to order a party attend an examination with a non-"health practitioner", resolving conflicting decisions in the lower court. However, exercising the Court's inherent jurisdiction is not the default. The moving party must demonstrate that it is necessary to ensure justice and fairness.

The Courts have the jurisdiction to cover all grounds in the evolving landscape of patient care by holding that section 105 of the Courts of Justice Act does not occupy the field. In doing so, the Courts have levelled the playing field for defendants.


1 2015 ONCA 471, [Ziebenhaus].

2 RSO 1990, c C.43, s. 105(2).

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