Whether 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. The parties in the recent Court of Appeal decision Ziebenhaus v. Bahlieda 2015 ONCA 471 agreed that a vocational assessor is not a “health practitioner” as defined in section 105(1) of the Courts of Justice Act and that there is nothing in the Courts of Justice Act or in the Rules of Civil Procedure, allowing a court to order that a party submit to an examination by a vocational assessor. The issue on appeal was whether the Superior Court of Justice has inherent jurisdiction to order a party to undergo an assessment by someone who is not a “health practitioner”, as defined in section 105 of the Courts of Justice Act. The Court of Appeal has now resolved this debate.

By way of background, the appellant, Alexander Ziebenhaus was injured while skiing on a school trip at the Mount St. Louis Moonstone Ski Resort in February 2001. He suffered a brain injury and claimed, among other things, damages for loss of future income and loss of competitive advantage in the workplace. Ziebenhaus’ lawyer set up a neuropsychological and psychovocational assessment. The assessment report concluded that Ziebenhaus’ vocational potential and ability to pursue competitive work were “guarded”. The respondent, Mount St. Louis Moonstone Ski Resort Ltd. wanted Ziebenhaus to undergo another vocational assessment by an assessor it had chosen. It brought a motion for an order. The motion judge allowed the order. The order was then appealed to the Divisional Court. The Divisional Court affirmed the order and agreed with the motion judge’s ruling that the Court has inherent jurisdiction to order assessments and examinations not specifically addressed by section 105.
The appellants argued that the Divisional Court erred when it affirmed the motion judge’s order because section 105 defines who may conduct an examination and, as a result, the court does not have the inherent jurisdiction to order an examination by someone who is not a “health practitioner”.

The Court of Appeal, however, saw no basis to interfere with the Divisional Court’s decision as that court thoroughly explored the argument that section 105 “occupies the field” and that an order for examination by an individual who is not a “health practitioner” would be contrary to the intent of section 105. The Divisional Court said at paragraph 45:
The only conclusion that can be drawn from these circumstances is that section 105 does not completely “occupy the field” in the sense that it makes no provision for physical and mental examinations that are routinely used in the care and treatment of injured persons, and in litigation, that are conducted by persons who do not qualify as “health practitioners” under section 105. Accordingly, there is a gap in the statutory provisions regarding the entitlement of a party defending an action to require a plaintiff to submit to such examinations.

The Divisional Court ruled that an order for an assessment by an individual who is not a “health practitioner” would not be contrary to the intent of section 105. The Court of Appeal found no error in the Divisional Court’s analysis and conclusion. According to the Court of Appeal, the language of section 105 and Rule 33 is permissive, and they do not state that a court cannot order an examination by someone who is not a “health practitioner”. Inherent jurisdiction, the Court of Appeal stated, should be exercised sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness. The motion judge in this case concluded that invoking its inherent jurisdiction was necessary “in the interest of fairness”, as it was required for the defendants to meet the plaintiffs’ case. According to the Court of Appeal, the Divisional Court quite properly concluded there was no basis to interfere with the motion judge’s exercise of discretion in this case. This decision is significant as it explains the conditions in which a defence medical examination by a non-health practitioner may be ordered. The focus will be on whether the examination is required to ensure fairness and justice.