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Can the defence insurer compel a plaintiff to attend a non medical examination?

Defence Medical Examinations in Personal Injury Cases - Case Comment 

 
 
In the recent Ontario Court of Appeal decision of Ziebenhaus v. Bahlieda, 2015 ONCA 471, the Court of Appeal considered the inherent jurisdiction of the court to order a party in a court action to undergo a defence medical examination by a person who is not considered a “health practitioner” as defined by section 105 of the Courts of Justice Act. This is an important issue for personal injury lawyers because in many cases, defence lawyers wish to have injured parties assessed by non medical practitioners. The law was conflicting on this issue and so the Ontario Court of Appeal considered the appeal carefully.
 
In this case, the defendant wanted the plaintiff to undergo a vocational assessment by a certified vocational evaluator. The plaintiff refused to attend. The plaintiff’s position was that a vocational evaluator was not a “health practitioner” as defined by section 105 of the Courts of Justice Act.
 
At the motion, the plaintiff was ordered to undergo the examination. That order was appealed to the Divisional Court who also ordered the plaintiff to undergo the examination.
 
There is no question that the vocational assessor was not a health practitioner as per the definition. 
 
The plaintiff argues that the court does not have “inherent jurisdiction” to order an examination by a non health practitioner. However, the Court of Appeal disagreed with the plaintiff. It held that the court does have inherent jurisdiction and it could exercise its discretion to order the examination to prevent abuse and to ensure justice and fairness in the process. The court did comment that the exercise of its 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.” 
 
In this case, the plaintiff was ordered to attend a defence vocational assessment. This decision has expanded, in my view, the types of assessments defence can insist plaintiffs attend.
 
 
Marc-Nicholas Quinn,
Quinn Thiele Mineault Grodzki LLP
Personal Injury Lawyers - Mediators
310 O'Connor Street
Ottawa, ON K2P 1V8
Tel:  (613) 315-4878