Examinations by Non Medical Practitioners
In the recent case of Ziebenhaus v. Bahlieda, 2014 ONSC 138, the Divisional Court has ruled that “examinations” can be ordered outside the three areas of specialty provided by section 105 of the Courts of Justice Act. This means that if you are involved in a court action seeking damages for injuries you sustained in an accident, the Court could, on motion by the insurance company or other Defendant, order you to be examined by non medical practitioners.
Pursuant to Rule 33 of the Rules of Civil Procedure and section 105 of the Court of Justice Act, the court may order a party in an action to undergo a medical examination. Section 105 states as follows:
105. (1) In this section, "health practitioner” means a person licensed to practice 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 party’s 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.
Because section 105 is silent about examinations outside the scope of experts in medicine, dentistry and psychology, the parties had a disagreement when the defendant wanted the plaintiff to be examined by a “vocational assessor”. Until this decision, defendants had very little availability to have plaintiffs submit to examinations by experts not specifically listed in section 105 of the Courts of Justice Act.
The Divisional Court clarified the confusion over this issue by ruling that section 105 does not list all types of experts that may examine parties. Moreover, the Court stated that it has inherent jurisdiction to permit an examination by a non medical practitioner where the Court makes a fact-specific determination as to whether a party ought to be required to attend an examination with a type of health practitioner that is not specified in section 105(1) of the Courts of Justice Act.
The Court can exercise this inherent jurisdiction to ensure trial fairness and justice for the parties. A Court can make the order in the “interest of trial fairness and justice”.
The Divisional Court found that the defendant in the Ziebenhaus action was entitled to the requested examination by a vocational assessor.
As personal injury lawyers, we often deal with issues such as examinations. If you have been injured in an accident, chances are that the defence will want you to be examined by one or more of their experts. We are there to ensure that the process followed is fair and that your interests are protected.
Contact us for a free consultation at 613-315-4878. We work on the basis of no fee until you win.
Ottawa Injury Lawyers