When the physical and mental condition of the plaintiff is central to a case, to what extent can a defendant compel that plaintiff to submit to testing to determine the extent of her injuries? That question was recently answered by Ontario’s Court of Appeal in Ziebenhaus v. Behlieda.

History of the Law in Ontario

Historically in Ontario, a defendant could move for the plaintiff to attend an examination by a physician, dentist, psychologist or psychiatrist, or to undergo “further physical or mental examinations.” The courts in Ontario have long been equivocating about whether or not they have the power, either under the Courts of Justice Act or their inherent jurisdiction, to compel plaintiffs to undergo testing by other, para-medical professionals at the request of the defendant.

The case law on this point had diverged into two competing lines of thought. The more conservative approach held that examinations by other medical professionals could be ordered only if those evaluations were a “diagnostic aid” for the few medical professionals specified in the Act, thus bringing the testing under the Act’s authority.  The more liberal approach held that there ought to be a “level playing field” as between the plaintiffs and the defendants. If the plaintiff was able to adduce evidence about her damages by being examined by para-medical professionals, the more liberal courts ruled that the defendant should have the opportunity to produce similar evidence, by virtue of the inherent jurisdiction of the Court to ensure a fair trial.

Last year, the Divisional Court sought to resolve this controversy in the decision of Ziebenhaus v. Behlieda. That Court adopted the more liberal line of thinking, finding that it would be deprived of useful information if evidence from these professionals could only be provided by one side and not the other.  In its decision, the Divisional Court noted that the Court of Appeal had not yet weighed in to resolve the controversy. It has now done so.

The Ontario Court of Appeal’s Decision

In a very brief decision endorsing the Divisional Court’s reasons, the Ontario Court of Appeal confirmed that the defendant ought to have the right to meet the plaintiff’s case with its own evidence. The Court ruled that requiring the defendant to show that para-medical examinations are necessary “diagnostic aids” for a “medical practitioner” to come to a diagnosis was an unnecessary fiction, and contrary to public policy.

Key Take-Away Principle

While defendants are now more free to seek para-medical examinations of plaintiffs in personal injury cases, we expect that courts will continue to assess motions for defence medicals on a case-by-case basis. A judge may be reluctant to order extensive testing on a vulnerable plaintiff – especially where that evidence is not necessary to challenge similar evidence from the plaintiff’s own experts. Notwithstanding that caveat, and pending any possible further appeal, a lingering unfairness to defendants in the Rules of Civil Procedure appears to have been rectified.