Graham Pett

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.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for statutory accident benefits, arguing it was statute-barred because the plaintiff failed to mediate her claim and failed to return settlement funds prior to commencing the action.

The plaintiff brought a cross-motion for partial summary judgment for ongoing income replacement benefits.

The court granted the defendant's motion, finding that the failure to mediate and return the settlement funds deprived the court of jurisdiction.

The plaintiff's cross-motion was dismissed on the merits due to contradictory evidence regarding her disability.

The plaintiffs sought leave to appeal an interlocutory order compelling the plaintiff to attend a defence vocational assessment with a non-health practitioner.

The central issue was whether the court has inherent jurisdiction to order such an assessment independent of section 105 of the Courts of Justice Act.

The court found conflicting authorities on this issue and determined it was open to serious debate and of general importance to the profession.

Leave to appeal to the Divisional Court was granted.

The Applicant was injured in a motor vehicle accident and received statutory accident benefits until the Insurer terminated them.

The Applicant sought arbitration for ongoing weekly income benefits, medical and rehabilitation benefits, and a special award.

The arbitrator found that the Applicant suffered from chronic pain and soft tissue injuries that prevented her from returning to full-time work, entitling her to ongoing weekly income benefits and specific rehabilitation benefits, including ergonomic equipment for a home office.

The arbitrator denied the Insurer's request for repayment of chiropractic expenses and denied the Applicant's request for a special award, finding the Insurer's actions were not unreasonable.