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
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 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
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
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
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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