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

Ontario Superior Court of Justice,

Divisional Court,

Sachs, Wilton-Siegel and Nolan JJ.

April 2, 2014

119 O.R. (3d) 275 | 2014 ONSC 138

Case Summary

Civil procedure — Discovery — Examination by non-medical practitioner — Superior Court judge having inherent jurisdiction to order that plaintiff be examined by non-medical practitioner where trial fairness and justice require it.

Orders were made in two personal injury actions requiring the plaintiff to be examined by a non-medical practitioner. In the Z action, Z was ordered to undergo a vocational assessment by a certified vocational assessor. In the J action, J was ordered to undergo a functional abilities evaluation ("FAE") by a chiropractor. In each case, the plaintiff appealed, arguing that a Superior Court judge has no inherent jurisdiction to authorize physical examinations and that, accordingly, a court can only order a non-medical examination if the provisions of s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA") have been met.

Held, Z's appeal should be dismissed; J's appeal should be allowed.

Section 105 of the Courts of Justice Act, which provides for physical and mental examinations by "health practitioners", does not completely occupy the field. There is a gap in the statutory provisions regarding the entitlement of a defendant to require a plaintiff to submit to an examination by a person who does not qualify as a "health practitioner". Assessments by non-medical practitioners are routinely used in the actual care and treatment of patients, and it would be contrary to good public policy to exclude their use in a litigation context that addresses the same circumstances. A Superior Court judge can exercise his or her inherent jurisdiction and order that the plaintiff be examined by a non-medical practitioner in a manner that does not conflict with s. 105 where trial fairness and justice require it.

In the Z action, the motion judge applied the correct test in the exercise of his inherent jurisdiction to make the order under appeal, recognizing that the issue was whether the report sought by the defendants was necessary to address the plaintiff's case. In the J action, the motion judge erroneously believed that he was required by binding authority to grant the requested relief but did not consider whether the assessment was necessary in the interests of trial fairness and justice. The principal, if not the only, basis for the order sought was the fact that the plaintiff had obtained an FAE. The mere fact that the plaintiff has obtained an FAE was not sufficient to satisfy the test for the exercise of the court's inherent jurisdiction. The defendants had failed to demonstrate that the proposed FAE was, in fact, necessary in the interests of trial fairness and justice.

Desbiens v. Mordini, [2002] O.J. No. 5975, 2002 CarswellOnt 6037 (S.C.J.) [Leave to appeal refused [2003] O.J. No. 368 (Div. Ct.)]; Liston v. Mastrolacassa, unreported, 2012, Grace J. (Ont. S.C.J.); Vanderidder v. Aviva Canada Inc., [2010] O.J. No. 5011, 2010 ONSC 6222, 7 C.P.C. (7th) 219 (S.C.J.), consd

Other cases referred to

80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 1972 535 (ON CA), [1972] 2 O.R. 280, [1972] O.J. No. 1713, 25 D.L.R. (3d) 386 (C.A.); [page276] Abou-Marie v. Baskey, [1999] O.J. No. 6007, 1999 CarswellOnt 5058 (S.C.J.); Barnes (Litigation guardian of) v. London (City) Board of Education, [1994] O.J. No. 1480, 75 O.A.C. 69, 34 C.P.C. (3d) 51, 49 A.C.W.S. (3d) 239 (Div. Ct.); Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 164 (SCC), [1976] 2 S.C.R. 475, [1975] S.C.J. No. 84, 57 D.L.R. (3d) 1, 5 N.R. 515, [1976] 1 W.W.R. 1, 20 C.B.R. (N.S.) 240; Bellamy v. Johnson (1992), 1992 7491 (ON CA), 8 O.R. (3d) 591, [1992] O.J. No. 864, 90 D.L.R. (4th) 564, 55 O.A.C. 62, 33 A.C.W.S. (3d) 411 (C.A.); Bernier v. Assan, 2006 16481 (ON SC), [2006] O.J. No. 1978, 27 C.P.C. (6th) 376, 33 M.V.R. (5th) 26, [2006] O.T.C. 445, 148 A.C.W.S. (3d) 553 (S.C.J.); Central Halifax Community Assn. v. Halifax (Regional Municipality), [2007] N.S.J. No. 135, 2007 NSCA 39, 280 D.L.R. (4th) 506, 253 N.S.R. (2d) 203, 58 Admin. L.R. (4th) 139, 40 C.P.C. (6th) 223, 156 A.C.W.S. (3d) 461 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 279]; Cook v. Glanville, [2012] O.J. No. 133, 2012 ONSC 405 (S.C.J.); Edmeades v. Thames Board Mills Ltd., [1969] 2 Q.B. 67 (C.A.); Fantl v. Transamerica Life Canada, 2008 63563 (ON SCDC), [2008] O.J. No. 4928, 66 C.P.C. (6th) 203, 244 O.A.C. 183, 173 A.C.W.S. (3d) 691 (Div. Ct.); Grant v. Keane, 2001 62786 (ON SC), [2001] O.J. No. 5554, [2001] O.T.C. 994, 37 C.C.L.I. (3d) 278, 18 C.P.C. (5th) 258 (S.C.J.); H. v. H., [1933] 1 O.W.N. 490; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Huber v. Vanmeekeren, 2011 ONSC 3644 (S.C.J.); Klassen v. Royal Insurance Canada, 2004 50270 (ON SC), [2004] O.J. No. 5503, [2004] O.T.C. 1181, 16 C.C.L.I. (4th) 244, 136 A.C.W.S. (3d) 435 (S.C.J.); Kostopoulos v. Jesshope (1985), 1985 2047 (ON CA), 50 O.R. (2d) 54, [1985] O.J. No. 2295, 6 O.A.C. 326, 48 C.P.C. 209, 30 A.C.W.S. (2d) 48 (C.A.); Moore v. Wakim, [2010] O.J. No. 1492, 2010 ONSC 1991 (S.C.J.); Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6956 (ON CA), 74 O.R. (2d) 161, [1990] O.J. No. 1275, 71 D.L.R. (4th) 293 at 315, 40 O.A.C. 117, 44 C.P.C. (2d) 109, 21 A.C.W.S. (3d) 1360 (C.A.); R. v. Caron, [2011] 1 S.C.R. 78, [2011] S.C.J. No. 5, 2011 SCC 5, 329 D.L.R. (4th) 50, 411 N.R. 89, 2011EXP-427, 97 C.P.C. (6th) 205, 14 Admin. L.R. (5th) 30, 37 Alta. L.R. (5th) 19, 499 A.R. 309, 264 C.C.C. (3d) 320, J.E. 2011-232, EYB 2011-185762, [2011] 4 W.W.R. 1; R. v. Rose (1998), 1998 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; Scissons v. Lajoie, 2008 114 (ON SC), [2008] O.J. No. 24, 57 C.C.L.I. (4th) 69, 56 C.P.C. (6th) 63, 163 A.C.W.S. (3d) 211 (S.C.J.); Stelco Inc. (Re) (2005), 2005 8671 (ON CA), 75 O.R. (3d) 5, [2005] O.J. No. 1171, 253 D.L.R. (4th) 109, 196 O.A.C. 142, 2 B.L.R. (4th) 238, 9 C.B.R. (5th) 135, 138 A.C.W.S. (3d) 222 (C.A.); Suchan v. Casella (2006), 2006 20844 (ON SC), 81 O.R. (3d) 615, [2006] O.J. No. 2467, 30 C.P.C. (6th) 330, [2006] O.T.C. 559, 149 A.C.W.S. (3d) 392 (S.C.J.); Tarmohamed v. Scarborough (City) (1989), 1989 4373 (ON SC), 68 O.R. (2d) 116, [1989] O.J. No. 196, 31 C.P.C. (2d) 230, 14 A.C.W.S. (3d) 7 (H.C.J.); Waxman v. Waxman, [2011] O.J. No. 3780, 2011 ONSC 4707 (S.C.J.); Ziebenhaus v. Bahlieda, [2012] O.J. No. 3542, 2012 ONSC 3787, 41 C.P.C. (7th) 183, 218 A.C.W.S. (3d) 43 (S.C.J.)

Statutes referred to

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

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 33, 53.03

Authorities referred to

Jacob, I.H."The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23

Osborne, Coulter A., Civil Justice Reform Project: Summary of Findings & Recommendations (Queen's Printer for Ontario, 2007) [page277]

APPEALS by Z and J from the orders for examination by non-medical practitioners.

Darcy Romaine and Timothy Boland, for applicants Ziebenhaus.

Jerry O'Brien, for applicant Scott Jack.

Edward Tenki, for respondents Tyler Cripps and Donna Reath.

John A. Olah and Robert A. Betts, for respondents Mount St. Louis Moonstone ki Resort Ltd.

The judgment of the court was delivered by

WILTON-SIEGEL J.: —

[1] Each of these appeals of interlocutory orders addresses an important issue -- whether a judge of the Superior Court has the authority in the exercise of his or her inherent jurisdiction to order that a party be examined by a non-medical practitioner.

The Orders under Appeal

[2] The following briefly summarizes the two actions and the orders under appeal.

Alexander Ziebenhaus v. Robert Bahlieda

[3] In this action (herein referred to as the "Ziebenhaus action"), the plaintiff Alexander Ziebenhaus ("Ziebenhaus") alleges that he suffered a brain injury as a result of a skiing accident during an elementary school trip in 2001. He seeks damages for the loss of future income and other heads of damages.

[4] In connection with this litigation, Ziebenhaus' counsel arranged for a number of examinations and assessments of, and pertaining to, Ziebenhaus in the period 2010 to 2012.

[5] In 2010, Ziebenhaus underwent a neuropsychological and psychovocational assessment by his own expert, Dr. Voorneveld. In her report dated September 30, 2010, Dr. Voorneveld commented that the plaintiff's vocational potential and ability to pursue and sustain competitive work is guarded. In her report, Dr. Voorneveld notes there is an indication of ongoing frontal lobe pathology that has impacted on his day-to-day life, referring to anger and outbursts, poor judgment, socially inappropriate activity and a failure to self-monitor his behaviour. Dr. Voorneveld also commented that Ziebenhaus' neurobehavioural issues would disable him from effectively engaging in competitive employment in the future.

[6] Ziebenhaus' counsel arranged for a neuropsychiatric assessment to be conducted by Dr. van Reekum, a licensed psychiatrist whose report was delivered on or about March 10, 2011. [page278] Dr. van Reekum concluded that Ziebenhaus had suffered psychiatric impairments as a result of a traumatic brain injury. Ziebenhaus' counsel commissioned a second neuropsychiatric assessment that was conducted by Dr. Anthony Feinstein, a psychiatrist. In his report dated February 23, 2012, Dr. Feinstein diagnosed Ziebenhaus with a cognitive disorder and personality change due to a generalized medical condition. He found Ziebenhaus' progress to be guarded and found that his cognitive limitations would adversely affect his work situation.

[7] In addition, Ziebenhaus produced an economic loss report addressing his past and future wage claim, which relies on the conclusions in Dr. Voorneveld's report. He has also produced a future care cost report, which concluded that Ziebenhaus required, among other things, care giving and supervision daily for four hours until 2054, a registered social worker/life coach until 2054, and a care manager until 2025.

[8] The defendant 621198 Ontario Inc., operating as Mount St. Louis Moonstone Ski Resort Ltd. ("Moonstone"), arranged to have Ziebenhaus examined by its medical expert, Dr. Saint-Cyr, a neuropsychologist. In his report dated February 13, 2013, Dr. Saint-Cyr opined, among other things, that the plaintiff suffered a "moderately severe traumatic brain injury" that likely qualified for the diagnosis of post-concussion syndrome in the period following the accident. He also concluded that Ziebenhaus has a mild cognitive impairment and that, as a result, he is now more prone to aggressivity, impulsivity and poor judgment, among other things, which he concludes will be permanent. The reports of Dr. Voorneveld and Dr. St.-Cyr are discussed in greater detail below.

[9] Moonstone sought an order requiring the plaintiff to undergo a vocational assessment by a certified vocational evaluator. By order dated June 13, 2012 [Ziebenhaus v. Bahlieda, [2012] O.J. No. 3542, 2012 ONSC 3787 (S.C.J.)] (the "Ziebenhaus order"), Edwards J. ordered Ziebenhaus to be examined by Moonstone's vocational assessor, Graham Pett ("Pett").

Scott Jack v. Tyler Cripps and Donna Reath

[10] In this action (herein referred to as the "Jack action"), the plaintiff, Scott Jack ("Jack"), alleges that, as a result of a motor vehicle accident, he has sustained multiple serious injuries, including a "cerebral concussion". In the accident, which occurred in 2009, Jack's vehicle was rear-ended by a vehicle owned by the defendant Donna Reath and operated by the defendant Tyler Cripps ("Cripps") with her consent. Jack alleges a continuing [page279] functional impairment that prevents him from carrying out his normal employment, which is denied by the defendants.

[11] Jack's accident benefit insurer conducted a functional capacity evaluation on April 19, 2010 to determine his ongoing entitlement to an income replacement benefit ("IRB"). After receiving the report, the accident benefit insurer terminated his IRB effective August 25, 2010. In response, Jack underwent a functional abilities assessment on March 24, 2011, which was conducted by Steven Trujillo ("Trujillo") at his request. Trujillo's opinion is that Jack is capable of working in a suitable limited strength or light work occupation that allows for changing positions and avoids repetitive use of arms and stooping and crouching beyond a few minutes. Conversely, he is not capable of meeting the demands of his previous occupations of landscaper and gas furnace installer, which entailed medium and heavy strength actions as well as requiring the essential duties to be performed while stooping and crouched.

[12] In addition, in 2010, Jack underwent an independent medical assessment by Dr. Paul Cooper, a neurologist, who provided a report dated October 8, 2010. In 2010, Jack also obtained an independent medical assessment from Dr. Stewart Bailey, an orthopaedic surgeon. Dr. Bailey provided a report dated October 4, 2010 and a further report dated November 30, 2012, after a follow-up independent medical examination in November 2012. In 2011, Jack was examined by Dr. Keith Sequeira, a physiatrist, who provided a report dated November 28, 2011.

[13] Dr. Bailey opined that Jack suffered a soft tissue injury of the cervical and lumbar spine. He is of the view that occupations involving repetitive physical stressful bending, lifting and twisting, such as Jack's previous occupations, will enhance further symptoms and must be avoided for an indefinite period. Among other things, Dr. Sequeira opined that Jack's present pain and physical limitations preclude consistent and reliable work in the landscaping and heating/cooling fields and that the likelihood of his problems improving to the point where he could return to such physically demanding jobs is guarded to poor.

[14] By letter dated May 22, 2012 from defendants' counsel, the defendants requested that Jack attend a defence medical examination conducted by Dr. John Clifford, a physiatrist, to which Jack consented. He attended the examination on July 18, 2012. In his report dated August 10, 2012, Dr. Clifford concluded, among other things, that "from a functional perspective, there is no objective/medical basis for ongoing restrictions. Instead, it is not only safe, but an essential component of [page280] Rehabilitation that Mr. Jack undertakes a timely resumption of all usual activities (domestic, vocational and avocational) . . .". It is Dr. Clifford's opinion that Jack can participate in all his vocational and avocational pursuits from a physical perspective.

[15] In the May 22, 2012 letter, the defendants also requested that Jack attend a functional abilities evaluation (an "FAE") to be conducted by Michael Caterer ("Caterer"), a chiropractor. In response to a request for further information as to why the FAE was required, Jack's counsel advised by letter dated May 30, 2012 that the main reason why they required the FAE was to "ensure trial fairness and justice given that [Jack has] retained and served a Functional Abilities Assessment by Steven Trujillo ("Trujillo")". The defendants took the position that, in the absence of a more detailed explanation as to why an FAE is necessary, Jack would not attend the requested examination by Caterer.

[16] By order dated March 3, 2013 (the "Jack order"), Hockin J. ordered Jack to undergo an FAE to be conducted by Caterer.

Applicable Law

The issue on these appeals

[17] Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 set out a statutory scheme whereby a court may order that a party to an action undergo a medical examination as follows:

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.

[18] It is agreed that the examinations contemplated by the Ziebenhaus order and the Jack order fall outside the provisions of s. 105 of the Courts of Justice Act as, in each case, the [page281] proposed examiner does not qualify as a "health practitioner" for the purposes of s. 105 and the proposed examination cannot be characterized as a "diagnostic aid" to an examination of any such person.

[19] Accordingly, the issue in these proceedings is the authority of a judge of the Superior Court to order the examinations in question in the exercise of the judge's inherent jurisdiction in the interest of trial fairness and justice.

The standard of review on these appeals

[20] The standard of review on an appeal of an interlocutory order of a judge of the Superior Court is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31. The principal issue on these appeals is a legal issue -- whether a judge of the court has the inherent jurisdiction to order the examinations contemplated in the Ziebenhaus action and the Jack action -- and, accordingly, attracts a correctness standard.

[21] The respondents submit that the standard of review of the exercise of the court's inherent jurisdiction should be as set out in Kostopoulos v. Jesshope (1985), 1985 2047 (ON CA), 50 O.R. (2d) 54, [1985] O.J. No. 2295 (C.A.), at para. 48, in respect of the exercise of judicial discretion. In that decision, Robins J.A. stated that "it must be shown that the discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law".

[22] As the Jacob article (referred to below) identifies, there is a distinction between the exercise of judicial discretion afforded under a statute, as in Kostopoulos, and the exercise of inherent jurisdiction. The limited case law that is specific to the exercise of a court's inherent jurisdiction suggests that a judge's conclusion regarding the extent of the court's inherent jurisdiction is reviewable on a correctness standard, but the exercise of this jurisdiction is a matter of discretion that commands deference: see Central Halifax Community Assn. v. Halifax (Regional Municipality), [2007] N.S.J. No. 135, 2007 NSCA 39, at para. 17, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 279; and Fantl v. Transamerica Life Canada, 2008 63563 (ON SCDC), [2008] O.J. No. 4928, 66 C.P.C. (6th) 203 (Div. Ct.), at para. 13, in which the court expressed the view that the exercise of the court's inherent jurisdiction in that case involved the exercise of a discretion to which deference was owed by an appellate court that should not be interfered with simply because the appellate court would have come to a different conclusion. [page282]

The Positions of the Parties

[23] As Granger J. noted in Vanderidder v. Aviva Canada Inc., [2010] O.J. No. 5011, 2010 ONSC 6222 (S.C.J.), at para. 23, there is conflicting case law in this area:

The jurisdiction to order non-medical expert assessments is an area of controversy in Ontario courts. The decisions on this topic divide into two streams at the Superior Court of Justice level, and there does not appear to be a Court of Appeal decision settling the matter. In the first set of cases, courts generally interpret s. 105 and R. 33 narrowly, allowing non-medical assessments only if required as diagnostic aids for medical practitioners. The divergent stream invokes the discretionary inherent jurisdiction of the court to ensure justice is done in any particular case. In these cases, a non-medical expert assessment is usually ordered in the interests of fairness and justice.

I propose to address these two lines of cases in the context of the positions of the parties on these appeals.

The appellants

[24] The plaintiffs in the Ziebenhaus action and the Jack action (collectively, the "appellants") submit that there is no inherent jurisdiction of a judge of the Superior Court to authorize physical examinations. They argue that there is no common law right of discovery and, thus, rights of discovery are defined by, and limited to, the rights afforded by statute. Accordingly, the appellants argue that a court can only order a non-medical examination if the provisions of s. 105 of the Courts of Justice Act have been complied with.

[25] They rely on the stream of cases beginning with the dicta of Middleton J. in H. v. H., 1933 361 (ON SC), [1933] O.W.N. 490, at p. 491 O.W.N.:

Before the Judicature Act of 1927, it had been determined in a series of cases that the Court had no inherent power or jurisdiction to authorize physical examinations. It was recognized that the immunity of the person is a civil right which will only be destroyed or modified by express legislative provisions.

[26] The decision in H. v. H. was followed in Tarmohamed v. Scarborough (City) (1989), 1989 4373 (ON SC), 68 O.R. (2d) 116, [1989] O.J. No. 196 (H.C.J.), at paras. 4-6, where Reid J. refused to order a neuropsychological test based solely on a solicitor's affidavit that it would be unfair to the defendant to go to trial without one where the plaintiffs had already obtained such a test.

[27] The parties acknowledge that s. 105 of the Courts of Justice Act has more recently been interpreted broadly to provide that a court may order that a party undergo an assessment by a party who does not qualify as a "health practitioner" under s. 105 if a qualified medical practitioner states that such testing [page283] would constitute a "diagnostic aid" that is necessary to permit such practitioner to reach a conclusion and complete his or her report.

[28] This was the basis for the decision in Bernier v. Assan, 2006 16481 (ON SC), [2006] O.J. No. 1978, 27 C.P.C. (6th) 376 (S.C.J.) as expressed, at para. 48:

There remains however, the issue of the functional abilities testing and evaluation by the kinesiologist, Mr. Hogben. There is case law which establishes that if a health practitioner finds a "diagnostic aid" is necessary to reach a conclusion and complete a report, the Plaintiff may be ordered to undergo medical testing by someone who does not fall under the definition of a "duly qualified medical practitioner" (Gotch et al v. Chittenden, 1972 532 (ON SC), [1972] 2 O.R. 272 at 274 (H.C.): Abdul Nabi v. Wawanesa Mutual Insurance Co., [1999] O.J. 3966 (S.C.J.) at para. 13).

In Bernier v. Assan, the court ordered an FAE to be conducted by a kinesiologist as a "diagnostic aid" to a medical report to be provided by a psychologist whose examination would focus on vocational/avocational limitations of an injured forklift operator.

[29] The most recent decision cited to the court that upholds this approach to the court's jurisdiction is Scissons v. Lajoie, 2008 114 (ON SC), [2008] O.J. No. 24, 56 C.P.C. (6th) 63 (S.C.J.), in which Rocammo J. upheld Master Beaudoin's revised summary of the applicable principles, at para. 30, as follows:

It has been suggested by counsel that the principles that I previously listed in Grant v. Keane must be restated to reflect the developments in the case law. I do so now:

An assessment by persons who are not "health practitioners" may be ordered where such an assessment is necessary to the diagnosis of a health practitioner as defined by s. 105 of the Courts of Justice Act.

The word "diagnosis" referred to in the various authorities should be given a liberal interpretation.

In exercising the discretion in considering a request pursuant to Section 105 and Rule 33 the test to be applied by the Court is one of "fairness" but "fairness" by itself is not sufficient.

There needs to be a proper evidentiary basis for determining the health practitioner's necessity for such an assessment. While an affidavit from the qualified "health practitioner" is preferred; other credible evidence may satisfy the test if it provides a sufficient context to evaluate the necessity for the additional diagnostic testing.

The health practitioner should first examine the plaintiff and consider the results of that examination before making a request for adjunctive tests. At the very least, the health practitioner must comment on the relevant reports produced including any tests relied upon by the parties.

Encouraging physicians to ask for the tests should not be promoted. In the absence of an affidavit from the "health practitioner" Defence [page284] counsel should be prepared to reveal their correspondence with the physician making the request.

Such an assessment needs to be directed to an important issue in the case.

The Defendant must adduce evidence that such an assessment will ensure a fair trial or other just result.

The Defendant must set out in detail the nature of the tests to be performed including the identity of the assessors, the duration and the physical requirements of any tests.

The assessment must not be unnecessarily intrusive to the plaintiff. The onus is on the plaintiff to adduce such evidence.

[Emphasis omitted]

[30] Master Beaudoin had previously addressed the same issue in Grant v. Keane, 2001 62786 (ON SC), [2001] O.J. No. 5554, [2001] O.T.C. 994 (S.C.J.), in which he also expressed the view that assessments by persons who were not "health practitioners" may be ordered only where such an assessment is necessary to the diagnosis of a "health practitioner" as defined in s. 105 of the Courts of Justice Act.

[31] In the present cases, the appellants argue that this interpretation of s. 105 is sufficiently broad to capture the vocational assessment sought in the Ziebenhaus action and the FAE sought in the Jack action. They submit, however, that in each case the respondents failed to satisfy the requirements of s. 105 by providing evidence, in affidavit form or otherwise, from a qualified "health practitioner", as defined in s. 105, supporting the need for such assessment as a "diagnostic aid" to the medical report of the health practitioner.

The respondents

[32] The defendants in the Ziebenhaus action and the Jack action (collectively, the "respondents") argue that a judge of the Superior Court has inherent jurisdiction to order that a party to litigation undergo an assessment by a party who does not qualify as a "health practitioner" for the purposes of s. 105 of the Courts of Justice Act.

[33] The respondents rely on the following cases, among others, that hold that the court's inherent jurisdiction to control its own procedure and to ensure trial fairness and justice creates a jurisdictional basis for an order for an examination by persons who are not "health practitioners" for the purposes of s. 105. The respondents say this jurisdiction is available in circumstances where a proposed examination cannot be characterized [page285] as a "diagnostic aid" for the purposes of a medical report to be delivered under s. 105 of the Courts of Justice Act.

[34] This position was articulated by Cameron J. in Abou-Marie v. Baskey, [1999] O.J. No. 6007, 1999 CarswellOnt 5058 (S.C.J.), at para. 5, in the context of a defendant's request for a vocational assessment:

There is no evidence that the proposed assessor is a medical practitioner or that his report will be used to support a medical opinion. Accordingly, I have no jurisdiction under CJA s. 105 or R. 33 to order the examination. However, I have inherent jurisdiction to order what would be fair in the circumstances where the assessor's evidence would be relevant to an issue raised in the pleadings or to the evidence which would support an amendment to the pleadings at trial.

(Citation omitted)

[35] In Desbiens v. Mordini, [2002] O.J. No. 5975, 2002 CarswellOnt 6037 (S.C.J.), Cameron J. was sitting in appeal of an order of a master who, among other things, had denied a defendant's request for an "in person" examination of the plaintiff's physical capacity and needs by an occupational therapist to ground a future care costs report. Cameron J. reaffirmed his position in Abou-Marie v. Baskey as follows [at para. 6]:

If the Master's view of his jurisdiction was that he was limited by CJA s.105 to "medical practitioners", he was clearly wrong. In the area of his jurisdiction he can exercise the inherent jurisdiction of this court to do what is necessary to do justice. If in law his jurisdiction is limited, a judge of this court can exercise such a jurisdiction to achieve justice between the parties.

(Citations omitted)

[36] C. Campbell J. denied leave to appeal to the Divisional Court [[2003] O.J. No. 368 (Div. Ct.)] from the decision of Cameron J. in Desbiens v. Mordini, supra, stating, at para. 11, that "[t]o the extent that the decision of the Master was based on the premise that such an assessment could be ordered only under s. 105, it is in my view an error of law. I agree with the decision of Cameron J. for the reasons given by him". In these reasons, we do not need to address the issue of whether a master has the authority to exercise the court's inherent jurisdiction, which may have complicated the issue in Desbiens v. Mordini. Therefore, I will limit my analysis to the authority of the court.

[37] Desbiens v. Mordini was apparently followed recently by Howden J. in Moore v. Wakim, [2010] O.J. No. 1492, 2010 ONSC 1991 (S.C.J.), at para. 4, although this decision could also be characterized as a "diagnostic aid" case under s. 105 of the Courts of Justice Act, given other comments of Howden J. in the same paragraph. [page286]

[38] In Vanderidder, after noting the two streams of authorities, Granger J. relied on the court's inherent jurisdiction to order the plaintiff to undergo a life care assessment/future cost assessment by a certified life care planner and occupational therapist after the plaintiff had obtained a future care cost report that was the subject of a report by an actuary. The relevant passage in his decision, at paras. 34-35, reads as follows:

In my view, given the facts of this case and the claim being made by the plaintiff for future care costs, fairness can only be achieved by ordering Vanessa Vanderidder to participate in a life care assessment by a person other than a "health practitioner" notwithstanding that there is a lack of evidence before me from a health practitioner that such an assessment is needed by a health practitioner as a "diagnostic aid."

In my view, courts should always strive to achieve fairness in the trial process in order a "level playing field" at trial which will ensure a fast result. To allow the plaintiff to adduce evidence of her future care needs through an export [sic] retained by the plaintiff while denying the defendant the ability to have an expert in life care needs of its choosing would not create a "level playing field."

[39] In Cook v. Glanville, [2012] O.J. No. 133, 2012 ONSC 405 (S.C.J.), at para. 12, McDermid J. expressed the view that a court had discretion under its inherent jurisdiction to order that the plaintiff undergo an in-home occupational therapy assessment. In this decision, the court made it clear that the assessment was not sought as a "diagnostic aid" to the defendants' medical expert's report, but rather to permit the preparation of a future care cost report to be prepared by a third party who was a certified life care planner.

[40] In Huber v. Vanmeekeren, 2011 ONSC 3644 (S.C.J.), Carey J. ordered an examination by an occupational therapist to generate evidence of the plaintiff's physical capabilities relevant to an assessment of the future care costs and income loss claims of the plaintiff. The plaintiff had previously delivered a future health care cost report from a rehabilitation consultant/certified life care planner. In granting the order, Carey J. observed, at para. 16:

As the plaintiff have [sic] produced to the applicants evidence about her future care needs that have been determined by non health care practitioners, it cannot be said that it would be unfair to have her submit to assessments by other non health care practitioners chosen by the defence.

[41] In Liston v. Mastrolacassa, 2012 (Ont. S.C.J.) (unreported), Grace J. ordered an FAE notwithstanding that the plaintiff had not obtained an FAE for the trial where the plaintiff alleged she was unable to continue with a part of her career. Grace J. noted that the purpose of the FAE was to assess the plaintiff's [page287] "maximal functional activity tolerances". Grace J. considered that fairness required that the defendant be entitled to obtain such a report in order to address the plaintiff's claim of loss of future income related to her inability to continue to carry on a part-time practice as an ultrasound technologist.

Analysis of the Inherent Jurisdiction Cases

[42] Before proceeding, I will set out certain observations regarding the decisions referred to above in which a court has ordered a physical or mental examination in the exercise of its inherent jurisdiction, as these considerations inform my approach to the scope of the court's inherent jurisdiction and, as a consequence, the conclusions reached below.

[43] First, the cases reflect the fact that the health sciences have evolved to encompass a far wider range of assessments than those provided by a "health practitioner" as defined in s. 105 of the Courts of Justice Act. These include vocational assessments, functional capacity evaluations and workplace assessments that are provided by non-medical specialists, including occupational therapists, rehabilitation therapists, vocational assessors, future care costs experts, life care planners and other specialists. Such assessments and specialties are used in the actual care and treatment of patients in the continuum of care from a trauma hospital through a rehabilitation facility to a long-term care facility or in-home care. It would be contrary to good public policy to exclude their use in a litigation context that addresses the same circumstances.

[44] Second, it is also artificial to suggest that all such reports can be embraced by s. 105 as "diagnostic aids" to opinions to be given by a qualified "health practitioner". As the present case demonstrates, in many instances, such reports address issues not addressed in an independent medical examination and, in other cases, such reports supplement medical opinions previously delivered. Further, to insist on a requirement that a qualified health practitioner as defined in s. 105 express the opinion that he or she needs the examination as a "diagnostic aid" before allowing the examination could have the undesired effect of encouraging counsel to ask the health practitioners they retain to tailor their opinions accordingly. This, in turn, would run contrary to the spirit of rule 53.03 of the Rules of Civil Procedure, which has gone a long way to ensuring that experts really are "experts", rather than "hired guns who tailor their reports and evidence to suit the client's needs" (Honourable Coulter A. Osborne, Q.C., Civil Justice Reform Project: Summary of Findings & Recommendations (Queen's Printer for Ontario, 2007), at p. 71). [page288]

[45] The only conclusion that can be drawn from these circumstances is that s. 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 s. 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.

[46] Third, plaintiffs now typically base their claims for future care costs and/or the loss of future earnings on expert reports (collectively"future damages reports") which, in turn, rely upon one or more of such specialized assessments in addition to the reports of one or more medical examinations of the plaintiff. The process of preparing a future damages report in personal injury actions now typically involves one or more independent medical reports, on the basis of which an occupational needs or a vocational assessment is conducted to identify long-term care needs or vocational limitations and prospects, from which long-term care costs or a loss of future earnings can be calculated. The cases relied upon the respondents have in common this approach to the calculation of future loss or damage.

[47] In a number of the cases relied upon by the respondents, the defendant proposed that an occupational therapist would assess the physical needs of the plaintiff and prepare a future care costs report. In other cases, the court ordered a stand-alone occupational or vocational assessment that was to be used by another expert to prepare a separate future damages report. In all of these cases, the future damages report would rely on both an occupational or vocational assessment report as well as a report of a medical expert who qualified as a "health practitioner". As a result, the future damages report would provide a more detailed and more nuanced calculation of future costs or losses than would have been possible on the basis solely of the expert report of the independent medical practitioner.

Analysis of the Ambit of the Court's Inherent Jurisdiction

[48] The central issue on these appeals is the scope of the court's inherent jurisdiction. The description of the court's authority set out in 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 1972 535 (ON CA), [1972] 2 O.R. 280, [1972] O.J. No. 1713 (C.A.), at p. 282 O.R., remains a relevant point of departure even if it involved very different factual circumstances:

As a superior court of general jurisdictions, the [Superior] Court of Ontario has all of the powers that are necessary to do justice between the parties. [page289] Except where provided specifically to the contrary, the Court's jurisdiction is unlimited and unrestricted in substantive law in civil matters.

[49] The appellants submit, however, that the principles governing the exercise of a court's inherent jurisdiction do not extend to ordering an examination by an individual who is not a "health practitioner" for the purposes of s. 105.

[50] It is not disputed that the court's inherent jurisdiction is subject to the principle of parliamentary sovereignty and therefore must be exercised sparingly and in a clear case: see Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1976 196 (SCC), [1976] 2 S.C.R. 475, [1976] S.C.J. No. 84, at p. 480 S.C.R., where Dickson J., speaking for the court, stated"[i]n my opinion the inherent jurisdiction of the Court of Queen's Bench is not such as to empower a judge of that Court to make an order negating the unambiguous expression of the legislative will".

[51] Accordingly, the court's inherent jurisdiction will be ousted where Parliament has expressly legislated. The appellants argue that the statutory framework of s. 105 of the Courts of Justice Act, together with Rule 33 of the Rules of Civil Procedure, represents the legislature's determination regarding who may conduct a physical or mental examination of an adverse party in an action. On this basis, the appellants submit that s. 105 constitutes the sole basis of the authority of a judge of the Superior Court to order a physical or mental examination.

[52] I do not agree. I conclude that a court can exercise its inherent jurisdiction in a manner that does not conflict with s. 105 for two principal reasons.

[53] First, the language of s. 105 is permissive. Section 105 provides that a court may order an examination by a "health practitioner" where the physical or mental condition of a party is in question. It provides full discretion to a judge, subject to satisfaction of the requirements of the provision. However, s. 105 does not state that a court is prevented from ordering an examination on any other basis, including in the exercise of its discretionary authority. It is silent on this possibility. In this sense, s. 105 is not exhaustive on its plain meaning. Rule 33 of the Rules of Civil Procedure is permissive in the same manner.

[54] Second, as discussed further below, a court can only exercise its inherent jurisdiction if and to the extent that a defendant has demonstrated that it is necessary to enable the defendant to meet the plaintiff's case. Such a principle is either coincident with the principles that guide the exercise of the court's discretion under s. 105 or is narrower to the extent that it is possible that a court could order an examination under s. 105 for some other purpose. In this regard, I note that s. 105 [page290] provides wide discretion to a court, subject only to satisfaction of the specific requirements of s. 105 while, as mentioned, a court's authority to invoke its inherent jurisdiction is to be used sparingly, and only in a clear case in which justice and fairness compel such recourse. Given this principle, I see no basis on which a defendant would be able to obtain relief from a court in the exercise of its inherent jurisdiction that would not be available under s. 105.

[55] In such circumstances, the court's inherent jurisdiction should be available to address the treatment of the other types of assessments and examinations that are not addressed by s. 105, but that are typically undertaken, not only in the context of personal injury litigation but, more fundamentally, in the care and treatment of injured persons in our society. The exercise of the court's inherent jurisdiction in these circumstances is not in conflict with the existing statutory framework. Instead, it addressees a gap in that framework.

[56] In reaching this conclusion, I have rejected the following arguments of the appellants for the following reasons.

[57] First, the appellants' approach to the scope of the court's inherent jurisdiction is expressed in terms of a principle that the court does not have jurisdiction where a statute or rule "occupies the field". This characterization has found expression in the decisions of Morden A.C.J. in Peel (Regional Municipality of) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6956 (ON CA), 74 O.R. (2d) 161, [1990] O.J. No. 1275 (C.A.), at para. 4; and of Newbould J. in Waxman v. Waxman, [2011] O.J. No. 3780, 2011 ONSC 4707 (S.C.J.), at paras. 28-29, in each case dealing with the Rules of Civil Procedure.

[58] However, I do not think that it is correct to consider the scope of the court's inherent jurisdiction in this manner. Characterizing the issue by reference to whether legislation has "occupied the field" is either conclusory or misleading. The more appropriate, and precise, characterization of the scope of the court's inherent jurisdiction was addressed in R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, at para. 133, where it is stated that, if the court's inherent jurisdiction is to be removed, that can only be accomplished by "clear and precise language". This statement is also reflected in the decision of L'Heureux-Dubé J. in Rose, at para. 64, who, in affirming that Parliament can exclude the court's inherent jurisdiction by "clear and precise statutory language indicating the contrary", cited and affirmed the following passage in I.H. Jacob"The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23 (the "Jacob article"), at p. 24: [page291]

As a common law concept, the inherent jurisdiction is subject to the principle of parliamentary sovereignty. In I. H. Jacob"The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, the author states at p. 24:

Moreover, the term "inherent jurisdiction of the court" is not used in contradistinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. [Emphasis added.]

This passage in the Jacob article was also approved by Binnie J. on behalf of the Supreme Court in R. v. Caron, [2011] 1 S.C.R. 78, [2011] S.C.J. No. 5, 2011 SCC 5, at para. 32.

[59] This formulation of the principle makes it clear that the court's inherent jurisdiction will not be ousted to the extent that it can be exercised in a manner that does not conflict with a statutory provision or rule. In my opinion, the exercise of the court's inherent jurisdiction to order examinations by a person who is not a "health practitioner" for the purposes of s. 105 can be exercised in a manner that does not contravene or conflict with either s. 105 of the Courts of Justice Act or Rule 33 of the Rules of Civil Procedure.

[60] This issue engages the appellants' argument that the practical effect of the cases in which a court has ordered an examination based on its inherent jurisdiction is to render s. 105 redundant. The appellants' argument is based on a reading of these cases to the effect that, in order to obtain an order for a particular examination in the exercise of the court's inherent jurisdiction, it is sufficient to establish no more than that the plaintiff has already obtained a similar report. They argue that, on this basis, inherent jurisdiction has supplanted s. 105 as the governing principle for the granting of an order of a physical or mental examination.

[61] I agree that, if the principle of inherent jurisdiction were applied in the manner contemplated by the appellants, it would be at least arguable that courts would be said to be in conflict with s. 105. However, I do not read the cases referred to by the appellants in the manner proposed by them. In each of the cases relied upon by the respondents, the court exercised its inherent jurisdiction on the basis of a demonstrated nexus between the proposed examination and the purpose of the court's exercise of its inherent jurisdiction, i.e., the objective of furthering trial fairness and justice. The manner in which courts have proceeded also points to a limitation on the exercise of the court's inherent jurisdiction in this area. [page292]

[62] In each of the decisions relied upon by the respondents, the reports ordered by the court were necessary to meet the case asserted by the plaintiffs and were directly responsive to that case. The manner in which the plaintiff's case was demonstrated for such purpose varied. However, in each case, the court grounded its decision in the need for the particular examination to meet the plaintiff's case, rather than in the mere fact that the plaintiff had conducted a similar examination. Indeed, in Liston and in Abu-Marie v. Baskey, the plaintiff had not, or had not yet, obtained similar reports, but the court was satisfied that the particular reports were necessary to meet the plaintiff's case.

[63] In summary, the cases described above reflect the fact that a court can only exercise its inherent jurisdiction to order a physical or mental examination of a plaintiff in circumstances in which it is satisfied that trial fairness and justice requires such a result. While there may be additional considerations that also support the granting of such relief in any particular situation, the principal and necessary basis for such an order would be demonstration that a defendant cannot adequately meet the plaintiff's case without such an examination. A necessary and important corollary of this principle is that a court cannot order an examination in the exercise of its inherent jurisdiction solely on the basis of a principle of "matching".

[64] Second, the appellants also argue that the court's inherent jurisdiction does not extend to the substantive issue of compelling an examination, but is instead limited to the manner in which an examination, if ordered under s. 105, is to be conducted. The court's inherent jurisdiction was invoked in Bellamy v. Johnson (1992), 1992 7491 (ON CA), 8 O.R. (3d) 591, [1992] O.J. No. 864, 90 D.L.R. (4th) 564 (C.A.) for this purpose in respect of the recording of an examination and in Barnes (Litigation guardian of) v. London (City) Board of Education, [1994] O.J. No. 1480, 75 O.A.C. 69 (Div. Ct.), at para. 3.

[65] While the court's inherent jurisdiction can be deployed for such purposes, the appellants' position that the court's inherent jurisdiction is limited to such a function relies on an overly narrow understanding of the scope of the court's inherent jurisdiction. From the statement of Blair J.A. in Stelco Inc. (Re) (2005), 2005 8671 (ON CA), 75 O.R. (3d) 5, [2005] O.J. No. 1171 (C.A.), at para. 34, it is evident that the court's inherent jurisdiction, while not unbounded as discussed above, extends to substantive matters where it is necessary "to do justice between the parties and to secure a fair trial between them":

Inherent jurisdiction is a power derived "from the very nature of the court as a superior court of law" permitting the court "to maintain its authority [page293] and to prevent its process being obstructed and abused." It embodies the authority of the judiciary to control its own process and the lawyers and other officials connected with the court and its process, in order "to uphold, to protect and to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner." See I.H. Jacob"The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 27-28. In Halsbury's Laws of England, 4th ed. (London: Lexis-Nexis UK, 1973- ) vol. 37, at para. 14, the concept is described as follows:

In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particularly to ensure the observation of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

[66] Lastly, while it may well be correct that, as stated in H. v. H., legislative authority has historically been required to compel a physical examination, as noted in the Jacob article, the court's inherent jurisdiction has been used in England to effect the same substantive result by means of a stay of proceedings, which gives a plaintiff the choice of submitting to an examination or accepting a stay of the proceeding: see Edmeades v. Thames Board Mills Ltd., [1969] 2 Q.B. 67 (C.A.), in which Lord Denning M.R. stated, at p. 71 Q.B., that a court has jurisdiction to order a stay if the plaintiff's conduct in refusing a reasonable request "is such as to prevent the just determination of the cause". Whether an order compelling attendance or a stay of proceedings is the preferable course of action in the exercise of the court's inherent jurisdiction is an issue that has not, however, been raised in this proceeding or in any Canadian decision of which I am aware. Accordingly, it is not addressed in these reasons.

[67] Moreover, notwithstanding the fact that the proposed FAE in the Jack action may also involve a physical component, the real issue for the appellants in both cases is a private interview with Ziebenhaus and Jack, respectively, as part of the examination, rather than the issue of physical assault addressed in H. v. H.

[68] I think it is reasonable to conclude that the Court of Appeal has implicitly decided that a court has the inherent jurisdiction to order a private interview in connection with an assessment: see Barnes (Litigation guardian of) v. London (City) Board of Education. Further, I do not think that there is a legitimate concern that a plaintiff could use an examination ordered in the exercise of its inherent jurisdiction as a pretext for obtaining an unregulated discovery or as a means of impeaching testimony provided in an examination-for-discovery conducted in [page294] accordance with the Rules of Civil Procedure. The court is in a position, and indeed is required in the exercise of its inherent jurisdiction, to remedy any abusive use of the content of any private interview that an examiner may conduct as a part of any examination ordered in the exercise of such jurisdiction.

[69] Accordingly, in my view, judges of the Superior Court of Ontario have the inherent jurisdiction to order that a party to an action undergo a physical or a mental examination by a person who is not a "health practitioner" for the purposes of s. 105 of the Courts of Justice Act. The following principles, which have been mentioned above, apply in the determination of whether or not to exercise the court's inherent jurisdiction to order a physical or mental examination of a plaintiff and are relevant in the consideration below of the present appeals.

[70] First, it is possible that s. 105 has "occupied the field" in respect of physical or mental examinations by a "health practitioner" for purposes of s. 105. However, even assuming this to be the case, there can be no conflict with the court's inherent jurisdiction because the court's discretion under s. 105 is at least as extensive as the court's inherent jurisdiction.

[71] Second, as the court's inherent jurisdiction is to be exercised to further trial fairness and justice, there is no room for an automatic rule of application. In particular, the "matching" principle is no more appropriate as a determinant of a decision in the exercise of the court's inherent jurisdiction than it is in respect of a decision under s. 105: see Suchan v. Casella, supra (S.C.J.), at para. 7.

[72] Third, as mentioned, a court can only have recourse to its inherent jurisdiction sparingly, and on a basis that does not conflict with s. 105 or Rule 33 of the Rules of Civil Procedure. This is reflected in the principle that a court can only exercise its inherent jurisdiction to the extent it is "necessary to do justice between the parties": see, for example, Caron, at para. 38, per Binnie J.; and 80 Wellesley, infra, per Brooke J.A. This has been discussed above, in part, where it has been concluded that the court's inherent jurisdiction can only be exercised where it is necessary to permit a defendant to respond to the plaintiff's case.

[73] I would note as well that it has been suggested in the cases upon which the respondents rely that the non-medical reports in question may also serve the useful function of evening up the level of knowledge of the parties with a view to facilitating settlement or, alternatively, of assisting the trier of fact at trial by providing additional evidence. However, these reasons, by themselves, are not a sufficient basis for the exercise of the court's inherent jurisdiction. An order for an examination for [page295] such purposes, however desirable, does not satisfy the operative principle for the exercise of the court's inherent jurisdiction if it does not also further the fairness of a trial of the action in the manner described above.

Application of Legal Principles to the Cases Being Appealed

[74] I turn then to each of the cases being appealed in turn. Based on the foregoing, I conclude that the ground of appeal in each of the decisions under appeal that the motion judge lacked the jurisdiction to order the examination at issue must be rejected. There remains, in each case, however, the further ground of appeal that the motion judge erred in the exercise of his inherent jurisdiction.

The Ziebenhaus action

The reasons of the motion judge

[75] In his endorsement dated June 13, 2012 [ [2012] O.J. No. 3542, 2012 ONSC 3787 (S.C.J.)], the motion judge referred to the two lines of cases dealing with examinations by a non-medical practitioner discussed above. The motion judge concluded, however, that it was not necessary for him to determine the ambit of s. 105. He stated that [at para. 15]:

Even in those cases where the courts have looked to the jurisdiction found in Section 105 of the Courts of Justice Act, it becomes readily apparent that there is a greater tendency now to order an assessment by a non-medical practitioner, where after review of all the evidence, the court can come to the conclusion that such an assessment is reasonably required and will not result in an inherent unfairness to the plaintiff.

[76] The motion judge concluded that it would not be inherently unfair to order a vocational assessment on the basis of five considerations: (1) the vocational assessment was directed to an important issue in the case; (2) it was not unnecessarily intrusive to Ziebenhaus; (3) unlike Ziebenhaus' medical expert (Dr. Voorneveld), the defendant's medical expert (Dr. Saint-Cyr), is not an expert in vocational assessments and did not administer vocational tests to Ziebenhaus; (4) the report would be of assistance to the trier of fact if the case goes to trial; and (5) Ziebenhaus will not suffer any undue hardship or prejudice from an evidentiary perspective.

[77] The motion judge rejected Ziebenhaus' argument that affidavit evidence from a qualified health practitioner supporting the need for an assessment by a non-health practitioner was required. The motion judge considered that, where a claim for past and future wage loss is made, a plaintiff would reasonably [page296] expect to undergo a vocational assessment. Accordingly, the motion judge, in reliance on Vanderidder, at para. 34, considered there was no need, in such circumstances, for such affidavit evidence.

The position of the plaintiffs

[78] The plaintiffs argue that the motion judge erred in exercising his discretion to order the vocational assessment. They say that the motion judge improperly concluded that the defendants' medical expert, Dr. Saint-Cyr, had no expertise in vocational assessments and did not hold himself out as having the same qualifications as the plaintiffs' medical expert, Dr. Voorneveld. They say this disregards the fact that the defendants are nevertheless relying on Dr. Saint-Cyr's opinion as to Mr. Ziebenhaus' vocational potential.

[79] In addition, the plaintiffs say the defendants have not provided any basis for an order requiring that the proposed evaluator interview Ziebenhaus in conducting his vocational assessment. They say that the motion judge failed to consider this issue. They argue that there is no evidence justifying an interview and, accordingly, the motion judge had no basis for exercising his discretion in this regard.

[80] Lastly, the appellants argue that, given Dr. Saint-Cyr's opinion that Ziebenhaus had no vocational impairment, the motion judge's decision permitted the defendants to obtain a further examination for the purpose of corroborating a prior opinion, contrary to the principles affirmed in Klassen v. Royal Insurance Canada, 2004 50270 (ON SC), [2004] O.J. No. 5503, [2004] O.T.C. 1181 (S.C.J.), at para. 18.

Analysis and conclusions

[81] In this case, Ziebenhaus asserts that he has suffered a substantial future income loss due to vocational impairments that have resulted from his traumatic brain injury. Accordingly, the nature and extent of any vocational impairment is at issue. In support of his position, as described above, Ziebenhaus has obtained, among other things, a neuropsychological and psycho-vocational assessment by Dr. Voorneveld. The defendants in this action proposed to obtain the same information through separate reports of a neuropsychologist, Dr. St.-Cyr, and a vocational assessor.

[82] As a preliminary matter, I observe that the motion judge made the Ziebenhaus order pursuant to the exercise of his inherent jurisdiction as the leave motion judge correctly observed. Despite the motion judge's attempt to avoid a determination as [page297] to whether s. 105 of the Courts of Justice Act or the court's inherent jurisdiction provided the authority to make the Ziebenhaus order, there can be no doubt that s. 105 was not available in the circumstances. As discussed above, the vocational assessment sought cannot be characterized as a "diagnostic aid" to Dr. St.-Cyr's report, which has already been completed. Further, to the extent the motion judge considered that the applicable test under both s. 105 and in respect of the exercise of the court's inherent jurisdiction was that the examination was reasonably required and will not result in an inherent unfairness to the plaintiff, I think he may have incorrectly described the test for the exercise of judicial discretion under s. 105. However, as discussed further below, I consider that the motion judge applied the correct test in the exercise of his inherent jurisdiction to make the Ziebenhaus order.

[83] As a further preliminary matter, while the applicants take issue with the motion judge's observation that there is no evidence that Dr. St.-Cyr has any experience in vocational assessments and does not hold himself out as having the same qualifications as Dr. Voorneveld, the evidence supports this observation. More significantly, as the motion judge observed, Dr. St.-Cyr's report does not contain any indication that he conducted vocational tests that were similar to those conducted by Dr. Voorneveld.

[84] There is, therefore, a disparity between the extent of the vocational testing underlying the respective reports of Dr. St.-Cyr and Dr. Voorneveld, even if both address Ziebenhaus' ability to obtain and hold down full-time employment. The issue for the court is whether this is meaningful. In my opinion, it is for the following reason.

[85] Each of Dr. Voorneveld and Dr. St.-Cyr are of the opinion that Ziebenhaus' traumatic brain injury has resulted in an impairment that makes him more prone to aggressivity, impulsivity and poor judgment and that has rendered him vulnerable to substance abuse and more distractible. They part company on whether these consequences of his injury will affect Ziebenhaus' employment potential.

[86] Dr. St.-Cyr is guarded on this issue. In response to specific questions at the end of his report, he states the following:

The consequences of his TBI [traumatic brain injury] are that Mr. Ziebenhaus has not been able to fully actualise his academic potential and this will limit his employment in the future. He will probably be able to recover an appropriate career path if he permits medical and psychotherapeutic management, in which case he could successfully complete a law degree or similar professional training. In that scenario there is no reason to suspect that he would not be able to hold down a full time position. [page298]

[87] I observe that this is a conditional or qualified response to the question posed in the report. It is not an unequivocal conclusion, nor does it suggest that Ziebenhaus is capable of pursuing with equal success whatever career he might otherwise have pursued if the accident had not occurred. Moreover, earlier in his report, at p. 29, Dr. St.-Cyr opines that currently"at best", Ziebenhaus has "the intellectual capacity to be gainfully employed at a fairly sophisticated level, such as corporate law". However, he goes on to state that it is unclear "whether he has the maturity and emotional control necessary to function consistently at a professional level".

[88] Comparing the two reports, Dr. Voorneveld's report goes beyond Dr. St.-Cyr's conclusion to address the requirements of support that she feels would be required for Ziebenhaus to maintain employment. Dr. Voorneveld recommends the services of a rehabilitation support worker on a daily basis to assist Ziebenhaus in following through on his tasks and responsibilities and to assist him in problem solving, with a view to reducing his impulsivity and poor decisions in the moment. It is these factors that Dr. Voorneveld considers result in an inability to effectively engage in competitive employment, thereby negatively affecting his career prospects.

[89] It is possible to characterize the difference in emphasis and conclusion in these two positions as reflecting a difference of opinion regarding the same evidence. However, it is clear that the motion judge considered that Dr. Voorneveld's conclusions were based on more extensive testing, and therefore more extensive data, than Dr. St.-Cyr's report. That is not an unreasonable conclusion to draw, given the evidence before the court regarding very complex and nuanced issues.

[90] Dr. Voorneveld tested for Ziebenhaus' physical and conceptual aptitudes as well as his vocational interests. Her conclusion on Ziebenhaus' employment prospects are therefore more focused than Dr. St.-Cyr's conclusions. This difference arises not from the nature of Dr. St.-Cyr's conclusion, but from the more limited nature and extent of the examination that Dr. St.-Cyr conducted which, in turn, reflects his own qualifications.

[91] The motion judge concluded, in effect, that Dr. St.- Cyr's report did not specifically address Ziebenhaus' vocational prospects in the same focused and thorough manner as Dr. Voorneveld's report. Dr. St.-Cyr's report identified the same consequences of the frontal lobe injury as Dr. Voorneveld's report. However, Dr. St.-Cyr's report does not address in any detail the significance of such consequences for specific vocational pursuits in the more nuanced manner that Dr. Voorneveld's does. [page299]

[92] I note, as well, that the appellants also questioned the need for a private interview by Pett, as opposed to a mere review of the test results of Dr. Voorneveld. The motion judge appears to have assumed that a private interview was a necessary component of any vocational assessment and concluded that any such interview would not result in undue hardship or prejudice to Ziebenhaus. There is also the further consideration that Dr. Voornveld had the benefit of a private interview to assist her in her psycho-vocational assessment. The absence of such an interview by Pett would therefore be used at trial to diminish the reliability of any report that he might prepare.

[93] Looking at the decision of the motion judge in its entirety, I conclude that the motion judge applied the correct legal principle, recognizing in the first of his five considerations that the issue was whether the report sought by the defendants was necessary to address the plaintiffs' case. While the court may not have reached the same conclusion, the motion judge did not err in principle and it cannot be said that his decision to order the vocational assessment was either unreasonable or resulted in a denial of natural justice in the circumstances described above.

[94] Based on the foregoing, the appeal of the Ziebenhaus order is denied. Costs in the agreed amounts of $10,000 for the appeal, as well as $3,500 for the motion and $3,500 for the leave motion, are payable by the appellants.

The Jack action

The reasons of the motion judge

[95] In a short written endorsement dated March 3, 2013, the motion judge observed that "Dr. Bailey opines that work is 'problematic'. Dr. Clifford would have had the plaintiff back at work a long time ago". The motion judge observed that the defendants' objective on the motion was "to provide the defence an FAE to answer the plaintiff's FAE". He added that "one may reasonably ask why an FAE is necessary or relevant to its position as plead on its IME -- no adjunct testing was requested by Dr. Clifford".

[96] The motion judge stated that "if left without the cases, I would not order an FAE". He considered that the defence should be held to reliance on the opinion of their expert, Dr. Clifford, that the plaintiff can work. He also observed that the physical examination of the proposed assessor, a chiropractor, should not be used to bolster the views of Dr. Clifford.

[97] However, he concluded there was a large body of case law that justifies such an order on the basis of the court's inherent [page300] jurisdiction to ensure a fair trial. He found the case indistinguishable from Vanderidder, infra, and Liston, infra, and considered himself obligated to follow them.

The position of the defendants

[98] The defendants argue that the motion judge exercised his discretion appropriately. They argue that they were entitled to an FAE based on proving that the plaintiff had obtained an FAE. In their factum, the defendants submit, in reliance on Vanderidder, that because "the plaintiff elects to place before the court evidence concerning his functional ability as determined by a non-health practitioner, he can hardly be heard to claim that it would be unfair to order him to submit to such an assessment by a person of the choosing of the defendants". They also argue that they have provided an "evidentiary foundation to obtain the requested relief" that would justify the order, even if the plaintiff had not obtained an FAE.

Analysis and conclusions

[99] In this case, it is clear that the motion judge would not have granted the Jack order but for the cases cited to him involving the exercise of the court's inherent jurisdiction, in particular, Vanderidder and Liston, which he considered obligated him to grant the requested relief. In so doing, the motion judge erred.

[100] The cases to which the motion judge referred, including Vanderidder and Liston, establish the existence of the court's inherent jurisdiction. They do not, however, obligate a motion judge to order an examination by a person who is not a "health practitioner" in all circumstances. The motion judge is required to assess the request against the standard discussed above -- is the assessment necessary in the interests of trial fairness and justice? In granting the Jack order without undertaking such an analysis, the motion judge erred in principle. Accordingly, the Jack order must be set aside.

[101] This raises the issue of appropriate exercise of the court's inherent jurisdiction in these circumstances. In assessing whether trial fairness and justice require that the defendants be entitled to conduct the proposed FAE, the specific issue for the court is whether the FAE is necessary to enable the defendants to meet the plaintiff's case.

[102] As the motion judge noted, the principal, if not the only, basis for the relief sought was the fact that the plaintiff had obtained an FAE. I do not consider this to be a valid basis on its own for the exercise of the court's inherent jurisdiction. The [page301] mere fact that the plaintiff has obtained an FAE is not sufficient to satisfy the test for the exercise of the court's inherent jurisdiction. In this regard, the appellants say that the motion judge incorrectly proceeded on the basis of a "matching principle" that was rejected in Suchan v. Casella (2006), 2006 20844 (ON SC), 81 O.R. (3d) 615, [2006] O.J. No. 2467 (S.C.J.), at para. 7. The respondents say Suchan is a decision under s. 105 that should not be imported into the exercise of the court's inherent jurisdiction. It is not necessary to address this issue directly. I conclude, however, that the statement in Suchan that there is no automatic "tit for tat" is equally applicable in the present context. A court must analyze the specific facts of each situation to determine whether trial fairness and justice require any particular relief. This necessarily excludes any automatic rule that "levels the playing field" by providing that a defendant is entitled to each type of report that is obtained by a plaintiff.

[103] The Jack action differs from the cases relied upon by the respondents in one important respect. The defendants' position is that the plaintiff is fully capable of returning to work and, therefore, has not suffered any loss of future income. The FAE is being sought as an additional expert report that addresses the same issue as Dr. Clifford's report, rather than as an input into a further future damages report. In a letter provided by Caterer, he says an FAE would determine Jack's "current functional tolerances", which would allow vocational experts or medical experts to determine if return to employment is possible. However, as mentioned, the defendants also rely upon Dr. Clifford's opinion on this issue, which is clear -- the plaintiff was able to return to work some time ago. Accordingly, I do not see how an FAE is necessary to meet the plaintiff's case, given the defendants' position.

[104] In particular, it is not suggested that an FAE would yield additional information regarding the plaintiff's condition that would enhance the understanding of Dr. Clifford's report. Dr. Clifford's report included a conclusion that "from a functional perspective, there is no objective/medical basis for on-going restrictions" (emphasis added). This is very clearly a conclusion regarding Jack's functional tolerances. Moreover, Dr. Clifford was given and, therefore, must be assumed to have addressed both the functional abilities assessment conducted by Trujillo, among other reports.

[105] Further, from his report, it is clear that Dr. Clifford's opinion regarding Jack's ability to return to work is based on a full appreciation of his former occupations and the physical demands thereof. The real issue between the parties is not the [page302] current limitations experienced by Jack, but whether he can and should return to his prior occupations as part of his rehabilitation, as Dr. Clifford suggests, or is unable and will continue to be unable to do so without enhancing further symptoms for an indefinite, perhaps permanent, period of time, as Dr. Bailey suggests. In this regard, the FAE sought by the defendants also would not address the plaintiff's case or assist the trier of fact.

[106] Given the defendants' position in this trial, therefore, the only effect of the FAE would be to provide a further opinion that is corroborative of Dr. Clifford's opinion with regard to Jack's functional capabilities. As the defendants do not require this corroborative evidence to meet the plaintiff's case, this does not meet the standard of furthering trial fairness and justice.

[107] The defendants say they have established an evidentiary foundation to obtain the requested relief. They do not, however, specify of what this evidentiary foundation consists. The defendants have not provided any evidence as to what additional evidence the defendants require to meet the plaintiff's case that has not been addressed by the defendants' medical expert, Dr. Clifford, and that would be provided by the proposed FAE.

[108] Based on the foregoing considerations, I am of the opinion that the defendants have failed to demonstrate that the proposed FAE is necessary in the interest of trial fairness and justice.

[109] Based on the foregoing, the appeal of the Jack order is granted and the order is set aside.

Costs

[110] Jack has also appealed the costs award of the motion judge, which ordered Jack to pay the defendants' costs in the cause. Given the outcome of this appeal, the costs award of the motion judge is also set aside.

[111] Costs of the leave motion were fixed by the leave motion judge in the amount of $6,250 in the aggregate. Accordingly, costs in this amount are awarded in favour of the appellants. The appellants are also entitled to costs of $10,000 in respect of the appeals of the Jack order and the related costs order. The appellants are further entitled to costs of the original motion, which are hereby fixed in the amount of $4,500.

Z's appeal dismissed; J's appeal allowed.

End of Document