In the recent decision of Ziebenhaus v. Bahlieda, the Divisional Court had opportunity to consider the Court's ability to order a party to undergo an examination. Specifically, the issue was whether a judge of the Superior Court has the authority in the exercise of his or her inherent jurisdiction to order that a party be examined by a non-medical practitioner.
The Divisional Court decision related to the appeal of two motions court decisions. In the Ziebenhaus v. Bahlieda (“Ziebenhaus”) action, the plaintiff was ordered to undergo a vocational assessment by a certified vocational evaluator, who was selected by the defendants. In the Jack v. Cripps and Reath (“Jack”) action, the plaintiff was ordered to undergo a functional abilities assessment by a chiropractor, who was selected by the defendants.
In considering the above appeals, the Divisional Court considered section 105 of the Courts of Justice Act, which provides that where the physical or mental condition of a party to a proceeding is in question, the court may, on motion, order the party to undergo a physical or mental examination by one or more health practitioners. A health practitioner 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.
It was not disputed that the vocational assessment and functional abilities assessment ordered by the motions courts judges did not fall under the examination set out in section 105, above.
The Divisional Court considered the prior case law in this area and noted that it reflected the fact that the health sciences have evolved to encompass a far wider range of assessments than those provided for in section 105, above. In many cases, reports by non-medical practitioners address issues not addressed in independent medical examinations or supplement medical opinions previously delivered.
The Divisional Court noted the prevalence of plaintiffs' expert reports on future care costs and/or loss of future earnings (“future damages reports”) in personal injury actions:
The process of preparing a future damages reports in personal injury actions now typically involves one or more independent medical reports, on the basis of which an occupational needs or a vocational assessment is conducted to identify long-term care needs or vocational limitations and prospects, from which long term care costs or a loss of future earnings can be calculated.
How can defendants respond to these reports?
The Divisional Court concluded that the Court can exercise its inherent jurisdiction in ordering these examinations. In order to be successful on a motion to have the plaintiff examined by a non-professional, a defendant must demonstrate that such an examination is necessary to enable a defendant to meet the plaintiff's case in the interests of justice and trial fairness. A necessary and important corollary of this rule is that a court cannot order such an examination solely on the basis of “matching”.
In other words, a defendant would not be successful in a motion for an examination by a non-medical practitioner solely because the plaintiff has retained a non-medical practitioner of that speciality. The examination must be necessary to do justice between the parties and secure a fair trial between them.
The motion judge's decision on the Ziebenhaus action was upheld as the motion judge considered the correct legal principles in reaching his decision. The decision in the Jack action was overturned as the motion judge did not undertake the legal analysis required by the case law, discussed above.
This decision will be of interest to defence counsel as it seems to clarify the circumstances in which an examination by a non-medical practitioner may be ordered. In the face of future damages reports by plaintiffs' counsel, defendants will have further options to respond by obtaining their own non-medical experts. The focus will be on whether the examination is required to ensure trial fairness and justice to the parties.
 2014 ONSC 138.