Dr. Saint-Cyr

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 applicant was injured in a motor vehicle accident and sought a determination that he suffered a catastrophic impairment due to a mental or behavioural disorder, as well as entitlement to attendant care benefits.

The arbitrator applied the three-stage test from Pastore v. Aviva Canada Inc. and found that the accident materially contributed to a cognitive disorder that significantly impaired the applicant's daily life.

The arbitrator concluded the applicant had a marked impairment in concentration, persistence, pace, and work adaptation, meeting the threshold for catastrophic impairment.

The arbitrator awarded a monthly attendant care benefit of $3,036.82, finding the applicant required some supervisory care but not the constant supervision claimed.

In a personal injury action arising from a skiing accident allegedly causing traumatic brain injury, the defendants sought an order compelling the plaintiff to undergo a vocational assessment by a non‑medical practitioner.

The plaintiff argued the court lacked jurisdiction under the Courts of Justice Act and the Rules of Civil Procedure to order such an assessment because the proposed assessor was not a "health practitioner" within the statutory definition.

The court held that, regardless of the statutory framework, the court may order a non‑medical vocational assessment where it is reasonably required and necessary to ensure fairness in the litigation.

Given the substantial claim for past and future income loss and the importance of assessing residual earning capacity, the requested assessment was found appropriate and not unfairly intrusive.

The motion was granted and the plaintiff was ordered to attend the vocational assessment.