NEWMARKET COURT FILE NO.: CV-60252/01

DATE: 2013-03-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXANDER ZIEBENHAUS, CHRISTOPHER ZIEBENHAUS and VICTOR ZIEBENHAUS, minors by their Litigation Guardian Sylvia Ziebenhaus, GORDON ZIEBENHAUS, FREDERICK ZIEBENHAUS, GISELA ZIEBENHAUS, HILDEGARD WICKERT and the said SYLVIA ZIEBENHAUS, personally, Plaintiffs/Applicants

AND:

ROBERT BAHLIEDA, DELVIN CHOMIAK, CATHERINE MARINELLI, GORDON SPEARS, YORK CATHOLIC DISTRICT SCHOOL BOARD and 621198 ONTARIO INC. operating as MOUNT ST. LOUIS MOONSTONE SKI RESORT LTD. Defendants/Respondents

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: D.W. Romaine, Counsel, for the Plaintiffs/Applicants

R.A. Betts, Counsel, for the Defendant Mount St. Louis Moonstone Ski Resort Ltd.

HEARD: February 26, 2013

ENDORSEMENT

[1] The moving party, Alexander Ziebenhaus, et al. seeks leave to appeal to the Divisional Court the interlocutory Order of Justice M. Edwards dated June 13, 2012. The Order compelled the plaintiff, Alexander Ziebenhaus, to attend a defence vocational assessment with Graham Pett a Vocational Rehabilitation Specialist. It is not disputed that Mr. Pett is not a health practitioner as defined in s.105(1) of the Courts of Justice Act, R.S.O. 1990 c.43. The proposed appeal brings into focus an issue as to whether or not the court has an inherent jurisdiction to order a plaintiff to attend an assessment by a non-health practitioner, independent of s.105 of the Courts of Justice Act. The responding parties oppose the relief sought.

BACKGROUND FACTS

[2] Alexander Ziebenhaus was involved in a skiing accident at Mount St. Louis Moonstone Ski Resort on February 15, 2001. In his Statement of Claim he alleged that he suffered a head injury and consequently has a claim for a loss of income, loss of earning capacity and loss of competitive advantage. As part of this action he has been seen by a number of medical experts including Dr. Margaret Voorneveld who conducted a neuropsychological and psycho-vocational assessment. Consent was previously granted to enable the defence to obtain a medical assessments. It is not disputed that the defence request for a non-health assessment is not underpinned by a defence medical opinion which would indicate to the court that such a report would be of assistance to the medical practitioner in formulating his or her opinion.

RULE 62.02(4)

[3] A motion for leave to appeal and an interlocutory order to the Divisional Court requires the moving party to establish that:

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

POSITION OF THE MOVING PARTY

[4] The moving parties’ position is that the motion judge did not have statutory authority to order a non-medical assessment of the plaintiff under the statutory regime contemplated under s.105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure. The issue then becomes whether the court has inherent jurisdiction to order an examination by a non-medical practitioner. It is the moving parties’ position that there are conflicting authorities on this issue and a lack of appellate guidance on this point. The moving party submits in addition that there is good reason to doubt the correctness of the motion judge’s ruling and the matter has significant importance beyond the importance to the parties in question. As to the issue of importance the moving party sets out in his factum as follows at para. 61:

The outcome of this motion is of tremendous importance to the judiciary and to the legal community. If this matter is not resolved, and the court continues to make orders based on authority it does not have, then an injustice is committed, the judiciary is claiming powers that it does not possess, and undermining the legislature, and the civil rules committee.

POSITION OF THE RESPONDING PARTY

[5] The responding parties’ position is that the court does have inherent jurisdiction to order assessments by non-medical practitioners. As the responding party states in para. 3(c) in its factum:

There is no conflict in the law governing the granting of non-medical assessments. Rather, there are two separate streams of case law which form separate sources of authority for the Courts. In one stream, the Court can rely upon section 105 of the Courts of Justice Act and Rule 33 to order a defence assessment, in the other stream, the Court can rely on its inherent jurisdiction. There is no conflict between these two streams of authority. In fact, they largely rely upon the same principles, of fairness and justice, in determining when a non-medical assessment should be granted.

[6] The responding party submits that there is no reason to doubt the correctness of the order and the matter is not of such public importance as has already been decided by the Divisional Court.

ANALYSIS

[7] There is no doubt that the Superior Court has wide ranging inherent jurisdiction. Section 11(2) of the Courts of Justice Act provides that:

The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common-law and equity in England and Ontario.

[8] However, as the moving party develops in its factum, the right of discovery has evolved through statutory and not common-law principles. The right to ask questions of the party opposite was first permitted in an Act for the Better Administration of Justice in the Courts of Ontario 36 Vic. CAP 8 1873.

[9] As Middleton J.A. stated in H. v. H., [1933] O.W.N. 490 (Ont):

The general rules have no provision but in the Judicature Act R.S.O. 1927, C.88 physical examination is authorized in an action or proceeding for the recovery of damages or other compensation for in respect of bodily injury sustained by any such person. Before this Statute was passed it had been determined that in a series of cases that the Court had no inherent power or jurisdiction to authorize physical examination. The immunity of the person is a civil right which will only be destroyed or modified by express legislative provision.

[10] The Court of Appeal has addressed the issue of the court’s inherent jurisdiction in 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd. et al (1972), 2 O.R. 280. As Brooke J.A. stated at p.3:

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

[11] Although the Court of Appeal has recognized the inherent jurisdiction of the Superior Court it has acknowledged that the jurisdiction has limits, especially in the face of a clear rule. As the court stated in Peel v. Great Atlantic and Pacific Co. of Canada [1991] O.J. No. 1275 (ONCA) at para. 4:

With respect to the inherent jurisdiction of the court, we have some doubt that, when the field is occupied by a rule, in this case Rule 63, it can be properly held that the court has inherent jurisdiction.

[12] In Waxman v. Waxman 2011 ONSC 4707 at para. 28 Newbould J. balanced the existing rule against the court’s inherent jurisdiction and stated at para. 28:

… if the rules cannot be met, there is no inherent jurisdiction in a court to conclude that the order can be made in any event under some general discretion. In Toronto Dominion Bank v. Szilagyi Farms Ltd. (1998), 65 O.R. (2d) 433 Morton J.A. discussed the availability of using the court’s inherent jurisdiction when a rule dealt with the issue. He was of the view that if the rule in question, in that case dealing with security for costs, occupied the field or appeared to be a complete code dealing with the issue, the court lacked inherent jurisdiction to make an order and that the rule should govern.

[13] There is a significant line of decisions whereby courts have ordered a defence assessment by a non-medical practitioner pursuant to s.105 and Rule 33. In Scissons v. Lajoie, 2008 O.J. No. 24 the decision of Master Beaudoin (as he then was) was upheld by Roccamo J. who stated at para. 30:

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.

[14] In Bernier v. Assan, 2006 O.J. No. 1978 Shaughnessy J. considered whether or not there should be an order for a defence examination by a kinesiologist. As Shaughnessy J. noted at para. 49:

Dr. Scherer deposes that he is not personally qualified to administer functional capacity testing and yet such up-to-date testing is integral to the questions posed by defence counsel that relate to the material issues of the Plaintiffs vocational avocation limitations now and in the future. I therefore find and direct that the Plaintiff will submit to a functional abilities evaluation to be conducted by Mr. Hogben as at “diagnostic aid” to the medical report of Dr. Scherer.

[15] It is clear that Shaughnessy J. did not rely on the inherent jurisdiction of the court but found that the examination would fall within the parameters of a s.105(3) assessment as a diagnostic aid to a medical report.

[16] On the other hand, there are a number of cases where Superior Courts have found that there is inherent jurisdiction and have ordered an assessment by a non-medical practitioner. In Abou-Marie v. Baskey 1999 Carswell Ont. 5058 Cameron J. stated at para. 5:

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 R33 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 the evidence which would support an amendment to the pleadings at trial. [citation omitted]

[17] In Desbiens v. Mordini 2002 CarswellOnt. 6037 Cameron J. sitting in appeal of an order of the Master stated at para. 2:

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 an jurisdiction to achieve justice between the parties. [citations omitted]

[18] In Desbiens v. Mordini 2003 O.J. No. 368 C. Campbell J. dealt with the same matter on a leave to appeal to the Divisional Court. The court upheld the decision of Cameron J. and stated at para. 8:

I agree with Cameron J. that the suggestion that s.105 is the only basis for future care cost or vocational assessments amounts to an error in law.

[19] In Vanderidder v. Viva Canada Inc. 2010 ONSC 6222, 2010 O.J. No. 5011 Granger J. noted at para. 22:

Although a strict and literal interpretation of these principles excludes non-medical experts, courts have commonly allowed examinations by these professionals if required by the examining physician as a “diagnostic aid”. [citation omitted]

[20] As Granger J. further noted at para. 23:

The jurisdiction to order non-medical expert assessments is an area of controversy in Ontario courts. The decisions on this topic divide 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 interest of fairness and justice.

[21] On the facts before him Granger J. found at para. 34:

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 care practitioner notwithstanding 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”.

THE MOTION JUDGE’S RULING

[22] The motion judge averted to the divergent streams of authority and made reference to Granger J.’s comments in Vanderidder (supra).

[23] The motion judge then concluded at para. 15:

From my review of the jurisprudence it is not necessary to come down on one side or the other of this debate. Even in those cases where the courts have looked to the jurisdiction found in s.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 of 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.

[24] Although the motion judge declined to indicate which side of the debate he chose from it appears that he relied on the court’s inherent jurisdiction based upon principles of fairness and justice.

[25] In considering fairness and justice the motion judge considered the following factors:

• The importance of the issue of a vocational assessment

• that such an assessment is not unnecessarily intrusive

• the defence report from the medical practitioner does not comment on the issue of vocational capacity

• such a report will be of assistance to the court

• there will be no undue hardship or prejudice to the plaintiff in submitting to this form of discovery over which the plaintiff’s counsel has no control.

[26] I am satisfied that there are conflicting authorities on whether or not the court has inherent jurisdiction above and beyond the statutory authority as set out in Rule 33 and s.105 of the Courts of Justice Act. A determination by an appeal court about this issue would help not only the parties to these proceedings but the profession and the judiciary in connection with other similar applications.

[27] The second branch of Rule 62.02(4) requires a consideration of the correctness of the Order. As Farley J. said in Ash v. Lloyd’s Corp. (1982) O.J. No. 894 at para. 2:

I confirm that as to the first prong I do not need to conclude that the decision was wrong or probably wrong or that I would if hearing the original motion, have decided it otherwise. A threshold of this prong is that I be satisfied that the correctness of the order is open to very serious debate. [citations omitted]

[28] Based on the divergent streams of authorities that courts have relied on, I am satisfied that this issue is open to very serious debate. As previously noted, I am satisfied that this issue transcends the interests of the parties and is of importance to the profession and the judiciary.

CONCLUSION

[29] For the reasons given, leave to appeal the decision of the motion judge is granted.

COSTS

[30] The moving party has been successful on this leave application. If the parties cannot reach an agreement as to costs I will receive written submissions not exceeding three pages from the moving party within 20 days of the release of this endorsement. The responding party will then have a further ten days to respond with submissions not exceeding three pages.

MULLIGAN J.

Date: March 6, 2013