The plaintiffs in two separate personal injury actions appealed interlocutory orders requiring them to undergo examinations by non-medical practitioners (a vocational assessor and a chiropractor).
The plaintiffs argued that section 105 of the Courts of Justice Act constitutes a complete code for such examinations, precluding orders for non-medical practitioners.
The Divisional Court held that section 105 does not completely occupy the field and that a Superior Court judge has inherent jurisdiction to order an examination by a non-medical practitioner where necessary to ensure trial fairness and justice.
Applying this test, the court dismissed the appeal in the Ziebenhaus action, finding the vocational assessment was necessary to meet the plaintiff's case.
However, the court allowed the appeal in the Jack action, finding the defendants failed to demonstrate that the functional abilities evaluation was necessary.
