Courts Have Inherent Jurisdiction to Order Assessments by Vocational Assessors
8/7/2015 9:16 AM
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.