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 cases.”