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.