Does the Court have jurisdiction to Order a party to undergo an assessment by someone who is not a “health practitioner”? The Court of Appeal says yes.

In the 2015 decision of the Court of Appeal, Ziebenhaus v. Bahlieda, the appellant sustained a head injury while skiing on a school trip. He claimed damages for future income and a loss of competitive advantage. Appellant’s counsel arranged for a neuropsychological and psychovocational assessment. The reports concluded that the Plaintiff’s ability to pursue competitive work was guarded.

The respondent Mount St. Louis Moonstone wanted the appellant to undergo another vocational assessment by an assessor it had chosen. A motion was brought to compel attendance at this assessment and the motion relief was granted. The decision was appealed to the Divisional Court and the order was affirmed. It was agreed that the Court had inherent jurisdiction to order assessments and examinations  not specifically addressed by s. 105 of the Courts of Justice Act.

Section 105 states as follows:

105. (1) In this section, “health practitioner” means 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.

(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

(4) The court may, on motion, order further physical or mental examinations.

(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.

Section 105 was also assessed alongside Rule 33 of the Rules of Civil Procedure, which states:

Motion for Medical Examination

33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party. R.R.O. 1990, Reg. 194, r. 33.01.

It was agreed that a vocational assessor is not a health practitioner as defined by s. 105.

However, the Court of Appeal found that the Divisional Court had properly addressed that the Court can “exercise its inherent jurisdiction to order such an assessment, to ensure justice between the parties is done.” It was recognized that health sciences and patient care has expanded and includes experts who are “health practitioners”. It was also acknowledged that there is a gap in the language contained in section 105 and it is likely this section will be amended soon to encompass the expanded definition. Furthermore, the Court acknowledged that the principle of fairness had to be taken into account and that it would be unfair for the respondent not to be able to have the appellant undergo a vocational assessment.

This is a useful decision to keep in mind the next time counsel on the other side is trying to adhere to a strict interpretation of section 105.