BOULET v. SIR CORP.

CV-12-111611 (NEWMARKET)

2016 ONSC 5379

MOTION HEARD: AUGUST 25, 2016

COUNSEL: Michael Kealy for the defendants/moving parties Russell Howe for the plaintiffs/responding parties

ENDORSEMENT

Master R. A. Muir -

[1] This motion is brought by the defendants pursuant to section 105 of Courts of Justice Act, RSO 1990, c C.43 (“CJA”) and Rule 33 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (“Rules”). The defendants also rely on the court’s inherent jurisdiction in support of the relief sought. The defendants seek an order requiring the plaintiff Melissa Boulet (“Melissa”) to attend a defence assessment with occupational therapist Lee-Anne Lewis. The plaintiffs are opposed.

[2] This action arises from a slip and fall on October 24, 2010. As a result of the accident, Melissa claims to have suffered various physical injuries. She alleges, among other things, that these injuries have affected her ability to work and have resulted in a loss of income and a loss of competitive advantage. She also claims damages for her inability to carry out her normal living activities. Melissa asks for significant damages. The trial of this action is scheduled to be heard during the November 2016 sittings.

[3] At the outset of the argument of this motion I raised the issue of a master’s jurisdiction to make the order requested by the defendants. The parties agree that an examination by an occupational therapist is not covered by section 105 of the CJA. Only an examination by a health practitioner can be ordered pursuant to that section. The definition of health practitioner does not extend to an occupational therapist. It is limited to medical doctors, dentists and psychologists.

[4] Instead, the defendants rely on the inherent jurisdiction of the Superior Court as confirmed by the Divisional Court in its recent decision in Ziebenhaus (Litigation guardian of) v. Bahlieda, 2014 ONSC 138. At paragraph 69 of that decision, the court concluded that judges of the Superior Court have the inherent jurisdiction to order that a party undergo a physical or mental examination by a person who is not a health practitioner. The court went on to uphold the motion judge’s decision in Ziebenhaus to order an assessment by a person who was not a health practitioner, as defined by the CJA. The decision of the Divisional Court was subsequently affirmed by the Court of Appeal and reported at 2015 ONCA 471.

[5] The Divisional Court was very careful with the language it used in Ziebenhaus. Its conclusion was that a “judge” of the Superior Court possessed the inherent jurisdiction to order such an examination. It also expressly declined to address the issue of whether a master possessed the same jurisdiction. See Ziebenhaus at paragraph 36.

[6] In my view, there exists a serious question of whether a master can exercise inherent jurisdiction to make the order requested by the defendants. In my view, the law appears clear that a master cannot exercise the Superior Court’s inherent jurisdiction. Everything a master does must be authorized by the Rules or by statute. See Ontario (Attorney General) v. Victoria Medical Building Ltd., 1959 CanLII 20 (SCC), [1959] SCJ No. 70 at pages 7-8. The court in Ziebenhaus had to rely on its inherent jurisdiction for the simple reason that the relief requested was not authorized by the CJA. Nevertheless, there is some authority on this specific issue that confirms the ability of a master to exercise such jurisdiction. See Desbiens v. Mordini, [2002] OJ No. 5975 (SCJ) at paragraph 6; affirmed [2003] OJ No. 368 (Div Ct).

[7] I advised counsel that despite my reservations I was prepared to hear and decide this motion in reliance on the authority in Desbiens. However, it is my view that steps need to be taken to address this issue. Masters now hear motions in Toronto, Ottawa, Newmarket, Brampton and Milton. Motions for an order requiring attendance at defence medical assessments are routinely brought before masters, as permitted by the CJA and the Rules. As with this motion, they are often brought on the eve of trial and must be heard and decided quickly. Such motions should not get derailed by jurisdictional concerns. They should be heard by the judicial officer best suited to do so in a timely and efficient manner. It makes no sense to assign this category of motions to a particular judicial officer on the basis of the expertise of the proposed examiner rather than the nature of the relief requested.

[8] The added complexity of a jurisdictional issue should not act as a barrier to timely justice, especially when a simple solution is available. Courts at a higher level could certainly clarify the issue based on the current law. However, it is my view that a more efficient solution would be an amendment to the CJA to expand the definition of health practitioner to better reflect the modern reality of health care in Ontario, which obviously extends well beyond doctors, dentists and psychologists.

[9] With regard to the merits of this motion, the parties agree that the Divisional Court’s decision in Ziebenhaus sets out the test to be applied. The court must assess a defendant’s request and determine whether the proposed examination is necessary in the interest of trial fairness and justice and in order for the defendant to meet the plaintiff’s case. See Ziebenhaus at paragraphs 101 and 102. There is no “matching principle”. A defendant is not entitled to an examination of a plaintiff simply because the plaintiff has served a report from an expert in a particular discipline. See Ziebenhaus at paragraph 102. The Court of Appeal in its decision in Ziebenhaus emphasized that the court’s inherent jurisdiction should be exercised only sparingly and in clear cases. See the Court of Appeal decision in Ziebenhaus at paragraph 13. The central consideration for the court is therefore trial fairness and justice having regard to the particular facts of each case.

[10] I have considered these principles in the context of this action. This is a soft tissue injury case arising from a slip and fall in a restaurant. The defendant arranged for an examination of the plaintiff by a physiatrist, Dr. Rajka Soric. Dr. Soric appears to have examined the plaintiff on June 14, 2016 and prepared a report dated that same day. Dr. Soric concluded that the examination revealed no indication of accident related physical pathology that would alter Melissa’s ability to carry on with her normal activities of daily living. She saw no limitations in the plaintiff’s ability to perform housekeeping and home maintenance duties. She concluded that the plaintiff’s injuries do not affect her ability to work.

[11] In my view, the defendants’ position in defending this action is clear. Melissa’s injuries have no impact on her ability to work or carry out her normal living activities. The report of Dr. Soric is clear and unequivocal. The defendants are relying on this report in defending this action. In my view, the facts of this case are very similar to those in the Jack decision decided at the same time as and together with Ziebenhaus. The defendant’s expert in Jack arrived at very similar and unequivocal conclusions about the plaintiff in that action. The only conclusion I can arrive at is that the defendants are simply seeking to corroborate the findings of Dr. Soric or are seeking a matching report. Neither of those justifications is sufficient in the circumstances of this action. Given the defendants’ position in defending this action, the further examination is not necessary to meet the plaintiff’s case or in the interest of trial fairness or justice. The defendants’ motion is dismissed.

[12] The plaintiffs have been successful and are entitled to costs. However, I agree with the defendants that the costs requested of $2,500.00 are excessive. The applicable law is straightforward. No responding record was prepared. I also note that the plaintiffs did not have a costs outline available for the court’s consideration. In my view, it is therefore fair and reasonable for the defendants to pay the plaintiffs’ costs of this motion fixed in the amount of $1,500.00, inclusive of HST and disbursements. These costs shall be paid by September 26, 2016.

Master R.A. Muir

DATE: August 25, 2016