Case Summary: Defense Exam by Non-Health Practitioner?

Written by: Rikin Morzaria

Ziebenhaus v. Bahlieda, 2015 ONCA 471

In this decision, the Court of Appeal considered the inherent jurisdiction of the court to order a party to undergo a defence medical examination by someone who is not a “health practitioner” as defined by s. 105 of the Courts of Justice Act. The Court acknowledged at the outset that there was conflicting case law on the issue.

The original motion arose from a request by a defendant to have the plaintiff undergo a vocational assessment by a certified vocational evaluator. The plaintiff refused to attend on the basis that the proposed evaluator was not a health practitioner as defined by s. 105 of the Courts of Justice Act.

Both the motions judge and the Divisional Court ordered the plaintiff to undergo the examination.

The parties agreed that the vocational assessor was not a health practitioner. The plaintiffs argued that, by enacting s. 105 of the CJA, the legislature had defined a category of persons who may conduct an examination. Consequently, the plaintiff submitted that the court does not have inherent jurisdiction to order an examination by someone who does not qualify as a health practitioner.

The Court of Appeal disagreed. It endorsed the line of cases that held that a court may exercise its inherent jurisdiction to order such an assessment to ensure justice between the parties is done. In doing so, it endorsed the view that s. 105 does not “occupy the field” of defence medical examinations. Assessments such as vocational assessments and FAEs are not properly characterized as diagnostic aids to the opinions of health practitioners, but precluding their use in litigation would be contrary to good policy. The Court found that this left a gap in statutory provisions. The language of s. 105 of the CJA and Rule 33 is not clear and precise language intended to remove the inherent jurisdiction of the court to prevent abuse and to ensure fairness in the trial process. However, the inherent jurisdiction is to be used “only sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness.” Importantly, the Court held that this should not be seen as extending the reach of s. 105.

The Court found no reason to interfere with the motion judge’s decision that the vocational assessment was required in that case to ensure fairness between the parties.

Read the full decision on CanLII

Patrick Brown


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