



COURT OF APPEAL FOR ONTARIO

CITATION: Ziebenhaus v.
    Bahlieda, 2015 ONCA 471

DATE: 20150624

DOCKET: C59431

MacFarland, Rouleau and Lauwers JJ.A.

BETWEEN

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 (Appellants)

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 (Respondent)

Allan Rouben, Timothy P. Boland and Darcy W. Romaine,
    for the appellants

John A. Olah and Robert A. Betts, for the respondent
    Mount St. Louis Moonstone Ski Resort Ltd.

Heard: June 17, 2015

On appeal from the order of the Divisional Court (Justices
    Harriet E. Sachs, Herman J. Wilton-Siegel and Mary J. Nolan), dated April 2,
    2014, with reasons reported at 2014 ONSC 138, 119 O.R. (3d) 275, dismissing an
    appeal from the order of Justice Mark L. Edwards of the Superior Court of
    Justice, dated June 13, 2012, with reasons reported at 2012 ONSC 3787.

Rouleau J.A.:

[1]

At the conclusion of oral argument, the court dismissed this appeal,
    with reasons to follow. These are those reasons.

[2]

This is an appeal in a personal injury case that involves a narrow but
    important issue, one that this court has not yet addressed and on which there
    is conflicting case law: whether the Superior Court of Justice has inherent
    jurisdiction to order a party to undergo an assessment by someone who is not a
    health practitioner, as defined in s. 105 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 (the Act).

A.

Background

[3]

The appellant Alexander Ziebenhaus was injured while skiing on a school
    trip at the Mount St. Louis Moonstone Ski Resort in February 2001. He allegedly
    suffered a brain injury and has claimed damages for loss of future income and
    loss of competitive advantage in the workplace, as well as other heads of
    damages. Counsel for Ziebenhaus arranged for a neuropsychological and
    psychovocational assessment. The resulting report stated that his vocational
    potential and ability to pursue competitive work were guarded. The respondent
    Mount St. Louis Moonstone Ski Resort Ltd. wanted Ziebenhaus to undergo another
    vocational assessment by an assessor it had selected. It accordingly brought a
    motion for an order to that effect. The motion judge allowed the motion.

[4]

The motion judges order was appealed to the Divisional Court. That
    court affirmed the order. It agreed with the motion judges holding that the
    Court has inherent jurisdiction to order assessments and examinations not specifically
    addressed by s. 105.

B.

Analysis

[5]

The parties dispute before us centres on whether the motion judge
    exceeded his jurisdiction when, relying on the courts inherent jurisdiction,
    he allowed the respondents request for an order that Ziebenhaus be examined by
    a vocational assessor selected by the respondent. Section 105 of the Act permits
    a court to order a party to undergo a physical or mental examination by a
    health practitioner:

105. (1)

In
    this section, health practitioner means a person licensed to practise
    medicine or dentistry in Ontario or any other jurisdiction, a member of the
    College of Psychologists of Ontario or a person certified or registered as a
    psychologist by another jurisdiction.

(2)

Where
    the physical or mental condition of a party to a proceeding is in question, the
    court, on motion, may order the party to undergo a physical or mental
    examination by one or more health practitioners.

(3)

Where
    the question of a partys physical or mental condition is first raised by
    another party, an order under this section shall not be made unless the
    allegation is relevant to a material issue in the proceeding and there is good
    reason to believe that there is substance to the allegation.

(4)

The
    court may, on motion, order further physical or mental examinations.

(5)

Where
    an order is made under this section, the party examined shall answer the
    questions of the examining health practitioner relevant to the examination and
    the answers given are admissible in evidence.

[6]

The parties agree that a vocational assessor is not a health
    practitioner as defined in s.105(1) of the Act and that there is no provision
    in the Act or in the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    empowering a court to order that a party submit to an examination by a vocational
    assessor. Although mention was made of Rule 33 of the
Rules
, which

addresses medical
    examinations, it simply sets out how courts are to administer s. 105 of the
    Act.

[7]

The appellants argue that the Divisional Court erred when it confirmed
    the motion judges decision. In their submission, by enacting s. 105, the
    legislature has defined the category of persons who may conduct an examination.
    As a result, the court does not have the inherent jurisdiction to order an
    examination by someone who is not a health practitioner, as this would
    conflict with the legislation.

[8]

I see no basis to interfere with the Divisional Courts decision. That
    court fully canvassed the submission that s. 105 occupies the field and that
    an order for examination by an individual who is not a health practitioner
    would be contrary to the intent of s. 105.  In doing so, it addressed the
    conflicting lower-court jurisprudence on the issue of the courts jurisdiction
    to order such an examination. One line of cases interprets s. 105 of the Act
    and Rule 33 narrowly, allowing courts to order such an examination only if a
    health practitioner needs it as a diagnostic aid. The other line of cases
    suggests a court can exercise its inherent jurisdiction to order such an
    assessment, to ensure justice between the parties is done. See
Vanderidder
    v. Aviva Canada Inc.
, 2010 ONSC 6222, [2010] O.J. No. 5011, at para. 23.

[9]

The Divisional Court concluded that s. 105 does not occupy the field.
    It noted that the health sciences and patient care have evolved to include a
    wide range of assessments by experts who are not health practitioners. Such
    assessments cannot all be characterized as diagnostic aids to the opinion of a
    health practitioner. Precluding their use in the litigation context would be
    contrary to good public policy. In the light of these circumstances, the court said,
    at para. 45:

The only conclusion that can be drawn from these circumstances
    is that section 105 does not completely "occupy the field" in the
    sense that it makes no provision for physical and mental examinations that are
    routinely used in the care and treatment of injured persons, and in litigation,
    that are conducted by persons who do not qualify as "health
    practitioners" under section 105. Accordingly, there is a gap in the
    statutory provisions regarding the entitlement of a party defending an action
    to require a plaintiff to submit to such examinations.

[10]

On
    the issue of whether an order for an assessment by an individual who is not a
    health practitioner would be contrary to the intent of s. 105, the Divisional
    Court determined that it would not.

[11]

I
    see no error in the Divisional Courts analysis and conclusion.

[12]

As
    set out by the Supreme Court of Canada in
R. v. Rose
, [1998] 3 S.C.R.
    262, at para. 133:

[T]he inherent jurisdiction of superior courts is a significant
    and effective basis for preventing abuse of the courts process and ensuring
    fairness in the trial process. This enduring and important jurisdiction of the
    court, if it is to be removed can only be accomplished by clear and precise
    statutory language.

[13]

The
    language of s. 105 and Rule 33 does not constitute such clear and precise
    language. The language of these provisions is permissive, and they do not state
    that a court cannot order an examination by someone who is not a health
    practitioner. Moreover, the conclusion that a superior court judge has the
    inherent jurisdiction to order such an examination does not conflict with the
    relief available under s. 105, nor should it be seen as extending the reach of
    that section. Inherent jurisdiction should be exercised only sparingly and in
    clear cases, when the moving party demonstrates that it is necessary to ensure
    justice and fairness.

[14]

The
    appellants also argue that even if the court has the inherent jurisdiction to
    make such an order, it should not have exercised its jurisdiction in this case.

[15]

I
    would not give effect to this submission. While recourse to inherent
    jurisdiction should be had only sparingly, the motion judge in this case
    concluded that invoking it was necessary in the interest of fairness, as it
    was required for the defendants to meet the plaintiffs case. The Divisional
    Court quite properly concluded there was no basis to interfere with the motion
    judges exercise of discretion in this case.

C.

Disposition

[16]

For
    the above reasons, I would dismiss the appeal. By agreement of the parties, the
    respondent would be awarded costs on a partial indemnity basis, fixed in the
    amount of $25,000, inclusive of disbursements and HST.

Paul Rouleau J.A.

I agree J. MacFarland
    J.A.

I agree P. Lauwers
    J.A.

Released: June 24, 2015


