Ziebenhaus et al., minors by their Litigation Guardian Ziebenhaus et al. v. Bahlieda et al.

[Indexed as: Ziebenhaus (Litigation Guardian of) v. Bahlieda]

Ontario Reports

Court of Appeal for Ontario,

MacFarland, Rouleau and Lauwers JJ.A

June 24, 2015

126 O.R. (3d) 541 | 2015 ONCA 471

Case Summary

Civil procedure — Discovery — Examination by non-medical practitioner — Superior Court judge having inherent jurisdiction to order that party undergo assessment by someone who is not "health practitioner" as defined in s. 105 of Courts of Justice Act — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 105.

The defendant in a personal injury action brought a motion for an order requiring the plaintiff to undergo an assessment by a vocational assessor. The motion was granted. The plaintiff appealed on the ground that the motion judge exceeded his jurisdiction when he ordered an assessment by someone who was not a "health practitioner" as defined in s. 105 of the Courts of Justice Act. The Divisional Court upheld the motion judge's decision. The plaintiff appealed.

Held, the appeal should be dismissed.

Section 105 of the Courts of Justice Act does not occupy the field. The Superior Court has inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner" as defined in s. 105. That jurisdiction should be exercised sparingly and only in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness. There was no basis to interfere with the motion judge's conclusion that it was necessary in the interests of fairness to invoke the court's inherent jurisdiction in the circumstances of this case.

Cases referred to

R. v. Rose (1998), 1998 CanLII 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 166 D.L.R. (4th) 385, 232 N.R. 83, 115 O.A.C. 201, 129 C.C.C. (3d) 449, 20 C.R. (5th) 246, 57 C.R.R. (2d) 219, 40 W.C.B. (2d) 192; Vanderidder v. Aviva Canada Inc., [2010] O.J. No. 5011, 2010 ONSC 6222, 7 C.P.C. (7th) 219, 195 A.C.W.S. (3d) 70 (S.C.J.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 105 [as am.], (1) [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 33 [page542]

APPEAL from the order of the Divisional Court (Sachs, Wilton-Siegel and Nolan JJ.) (2014), 119 O.R. (3d) 275, [2014] O.J. No. 1583, 2014 ONSC 138 (S.C.J.) dismissing an appeal from the order of Edwards J., [2012] O.J. No. 3542, 2012 ONSC 3787 (S.C.J.).

Allan Rouben, Timothy P. Boland and Darcy W. Romaine, for appellants.

John A. Olah and Robert A. Betts, for respondent Mount St. Louis Moonstone Ski Resort Ltd.

The judgment of the court was delivered by

1ROULEAU J.A.: — At the conclusion of oral argument, the court dismissed this appeal, with reasons to follow. These are those reasons.

2This is an appeal in a personal injury case that involves a narrow but important issue, one that this court has not yet addressed and on which there is conflicting case law: 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 s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "Act").

A. Background

3The appellant Alexander Ziebenhaus was injured while skiing on a school trip at the Mount St. Louis Moonstone Ski Resort in February 2001. He allegedly suffered a brain injury and has claimed damages for loss of future income and loss of competitive advantage in the workplace, as well as other heads of damages. Counsel for Ziebenhaus arranged for a neuropsychological and psychovocational assessment. The resulting report stated that his 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 selected. It accordingly brought a motion for an order to that effect. The motion judge allowed the motion.

4The motion judge's order was appealed to the Divisional Court. That court affirmed the order. It agreed with the motion judge's holding that the court has inherent jurisdiction to order assessments and examinations not specifically addressed by s. 105.

B. Analysis

5The parties' dispute before us centres on whether the motion judge exceeded his jurisdiction when, relying on the [page543] court's inherent jurisdiction, he allowed the respondent's request for an order that Ziebenhaus be examined by a vocational assessor selected by the respondent. Section 105 of the Act permits a court to order a party to undergo a physical or mental examination by a "health practitioner":

105(1) In this section, "health practitioner" means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.

(2) Where 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.

(3) Where the question of a party's physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

(4) The court may, on motion, order further physical or mental examinations.

(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.

6The parties agree that a vocational assessor is not a "health practitioner" as defined in s. 105(1) of the Act and that there is no provision in the Act or in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"), empowering a court to order that a party submit to an examination by a vocational assessor. Although mention was made of Rule 33 of the Rules, which addresses medical examinations, it simply sets out how courts are to administer s. 105 of the Act.

7The appellants argue that the Divisional Court erred when it confirmed the motion judge's decision. In their submission, by enacting s. 105, the legislature has defined the category of persons who may conduct an examination. As a result, the court does not have the inherent jurisdiction to order an examination by someone who is not a "health practitioner", as this would conflict with the legislation.

8I see no basis to interfere with the Divisional Court's decision. That court fully canvassed the submission that s. 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 s. 105. In doing so, it addressed the conflicting lower-court jurisprudence on the issue of the court's jurisdiction to order such an examination. One line of cases interprets s. 105 of the Act and Rule 33 narrowly, allowing courts to order such an examination only if a health practitioner needs it as a diagnostic [page544] aid. The other line of cases suggests a court can exercise its inherent jurisdiction to order such an assessment to ensure justice between the parties is done. See Vanderidder v. Aviva Canada Inc., [2010] O.J. No. 5011, 2010 ONSC 6222, 7 C.P.C. (7th) 219, 195 A.C.W.S. (3d) 70 (S.C.J.), at para. 23.

9The Divisional Court concluded that s. 105 does not "occupy the field". It noted that the health sciences and patient care have evolved to include a wide range of assessments by experts who are not "health practitioners". Such assessments cannot all be characterized as diagnostic aids to the opinion of a "health practitioner". Precluding their use in the litigation context would be contrary to good public policy. In the light of these circumstances, the court said, at para. 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.

10On the issue of whether an order for an assessment by an individual who is not a "health practitioner" would be contrary to the intent of s. 105, the Divisional Court determined that it would not.

11I see no error in the Divisional Court's analysis and conclusion.

12As set out by the Supreme Court of Canada in R. v. Rose (1998), 1998 CanLII 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, at para. 133:

[T]he inherent jurisdiction of superior courts is a significant and effective basis for preventing abuse of the court's process and ensuring fairness in the trial process. This enduring and important jurisdiction of the court, if it is to be removed can only be accomplished by clear and precise statutory language.

13The language of s. 105 and Rule 33 does not constitute such clear and precise language. The language of these provisions is permissive, and they do not state that a court cannot order an examination by someone who is not a "health practitioner". Moreover, the conclusion that a superior court judge has the inherent jurisdiction to order such an examination does not conflict with the relief available under s. 105, nor should it be seen as extending the reach of that section. Inherent jurisdiction should be exercised only sparingly and in clear cases, when the [page545] moving party demonstrates that it is necessary to ensure justice and fairness.

14The appellants also argue that even if the court has the inherent jurisdiction to make such an order, it should not have exercised its jurisdiction in this case.

15I would not give effect to this submission. While recourse to inherent jurisdiction should be had only sparingly, the motion judge in this case concluded that invoking it was necessary "in the interest of fairness", as it was required for the defendants to meet the plaintiffs' case. The Divisional Court quite properly concluded there was no basis to interfere with the motion judge's exercise of discretion in this case.

C. Disposition

16For the above reasons, I would dismiss the appeal. By agreement of the parties, the respondent would be awarded costs on a partial indemnity basis, fixed in the amount of $25,000, inclusive of disbursements and HST.