Courts Have Inherent Jurisdiction to Order Assessments by Vocational Assessors

On June 24, 2015, in Ziebenhaus v Bahlieda, 2015 ONCA 471, the Ontario Court of Appeal unanimously decided a narrow but important issue in personal injury law: whether superior courts have inherent jurisdiction to order a party to undergo a physical or mental assessment by someone who is not a “health practitioner.”

In Ontario, courts have jurisdiction to order a physical and mental assessment by a “health practitioner” under the Courts of Justice Act, RSO 1990, c C-43. “Health practitioner” includes persons licensed to practice medicine or dentistry and certified or registered psychologists.

In Ziebenhaus v Bahlieda, the Plaintiff was injured in a skiing accident while on an elementary school trip. He suffered a brain injury and sought compensation for loss of future income and other damages. Counsel for the Defendants brought a motion for a vocational assessment by an expert of their choosing – a vocational evaluator who was not a “health practitioner” as defined in the Courts of Justice Act. The motion judge ordered the Plaintiff to undergo assessment by the proposed vocational evaluator. Both the Divisional Court and the Court of Appeal upheld the order.

Neither the Courts of Justice Act nor the Rules of Civil Procedure, RRO 1990 Reg 1994 empowered the courts to order an examination by a vocational evaluator. However, the Court of Appeal invoked the inherent jurisdiction of superior courts, which provides “all of the powers that are necessary to do justice between the parties.” Such powers can be invoked in the interest of fairness where there is no “clear and precise statutory language” to the contrary. There was no such language in the Courts of Justice Act.

This Decision is of particular interest to those defending an action by injured parties claiming economic loss, such as loss of future income or diminished earning capacity. In such circumstances, the injured parties may be compelled to undergo vocational assessments by an expert of the defendants’ choosing. Such assessments can inquire into the injured parties’ present and future abilities to work. For courts to exercise their inherent jurisdiction to make such an order, however, it must be required to further trial fairness and justice between the parties.

If you believe that you have received improper or negligent medical treatment, contact of the members of the Patterson Law Medical Malpractice Team for advice. Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.