The Ontario Court of Appeal in Ziebenhaus v. Bahlieda, 2015 ONCA 471,
recently provided clarification on a contentious issue in personal
injury litigation. The plaintiff sustained a brain injury in a
skiing accident while on a school trip to Mount St. Louis Moonstone
Ski Resort. An action was commenced with the plaintiff seeking
damages for future loss of income and future loss of competitive
advantage, as well as other heads of damage.
In the course of the litigation, plaintiff's counsel
obtained a neuropsychological assessment that concluded the
plaintiff's ability to pursue employment was guarded. The
defendant then wished to obtain a rebuttal report conducted by a
vocational assessor. Plaintiff's counsel argued the defendant
had no right to obtain an examination by a person who was not a
"health practitioner". The Courts of Justice Act
defines the term "health practitioner" as, "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 another
jurisdiction" (R.S.O. 1990, c. C.43, s.105(1); 1998, c.18,
Schedule. G, s.48).
On appeal, the parties agreed that a "vocational
assessor" does not fall within the definition of "health
practitioner" pursuant to the legislation. They argued that
the Divisional Court erred when it confirmed the motion judge's
decision. The legislature has defined the category of persons who
may conduct an examination. As a result, the court does not have
the inherent jurisdiction to order an examination by someone who is
not a "health practitioner", as this would conflict with
the legislation. The Divisional Court held health science and
patient care has broadened to include assessments and treatments by
professionals who are not exclusively "health
practitioners". The Court determined that prohibiting the
opinions of non-"health practitioners" in the course of
litigation would be contrary to good public policy. The Court
of Appeal found no reason to interfere with the lower Court's
analysis and conclusion. This decision provides helpful
clarification regarding the complete arsenal of experts at defence
counsel's disposal during the course of litigation.
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