Ziebenhaus et al. v. Bahlieda et al., (2014) 319 O.A.C. 111 (DC)

• Judge: Sachs, Wilton-Siegel and Nolan, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 16, 2013
• Jurisdiction: Ontario
• Citations: (2014), 319 O.A.C. 111 (DC);2014 ONSC 138

Ziebenhaus v. Bahlieda (2014), 319 O.A.C. 111 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. AP.028

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 (applicants) v. Robert Bahlieda, Delvin Chomiak, Catherine Marinelli, Gordon Spears, York Catholic District School Board and 621198 Inc., Operating as Mount St. Louis Moonstone Ski Resort Ltd. (respondents)

Scott Jack (plaintiff/respondent) v. Tyler Cripps and Donna Reath (defendants/applicants)

(427/13; 505/13; 539/13; 2014 ONSC 138)

Indexed As: Ziebenhaus et al. v. Bahlieda et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Sachs, Wilton-Siegel and Nolan, JJ.

April 2, 2014.

Summary:

The plaintiff in a personal injury lawsuit (Ziebenhaus) alleged that he suffered a brain injury as a result of a skiing accident during an elementary school trip. The defendant obtained an order from a judge of the Superior Court requiring Ziebenhaus to undergo a vocational assessment by a certified vocational evaluator. The plaintiff in a second personal injury lawsuit (Jack) alleged that he had sustained multiple serious injuries as a result of a motor vehicle accident. A Superior Court judge ordered Jack to undergo a functional abilities evaluation (FAE) to be conducted by a chiropractor. Ziebenhaus and Jack appealed, arguing that there was no jurisdiction under the Courts of Justice Act or the Rules of Civil Procedure to allow for such assessments by non-medical practitioners. The defendants agreed that the vocational evaluator and chiropractor were not "health practitioners" for the purposes of s. 105 of the Act, but submitted that the Superior Court had an inherent jurisdiction to order the vocational assessment and FAE.

The Ontario Divisional Court held that judges of the Superior Court had the inherent jurisdiction to order that a party to an action undergo a physical or mental examination by a person who was not a "health practitioner" for the purposes of s. 105. The court dismissed Ziebenhaus' appeal as the Superior Court judge applied the correct legal principle in exercising his inherent jurisdiction by recognizing that the issue was whether the assessment sought by the defendants was necessary to address the plaintiff's case. The court allowed Jack's appeal and set aside the order as the Superior Court judge granted the order principally because Jack had obtained his own FAE, and failed to consider whether the FAE was necessary to enable the defendants to meet the plaintiff's case.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The plaintiffs in two personal injury lawsuits were ordered by judges of the Superior Court to undergo assessments by non-medical practitioners (a vocational evaluator and a chiropractor) - The plaintiffs appealed - It was not disputed that the assessors were not "health practitioners" as defined in s. 105 of the Courts of Justice Act - The issue was whether the Superior Court had an inherent jurisdiction to make such an order - The Ontario Divisional Court held that judges of the Superior Court had the inherent jurisdiction to order that a party to an action undergo a physical or mental examination by a person who was not a "health practitioner" for the purposes of s. 105 - The following principles applied in the determination of whether to exercise such jurisdiction - (1) Even if s. 105 "occupied the field" respecting physical or mental examinations, there could be no conflict with the court's inherent jurisdiction because the court's discretion under s. 105 was at least as extensive as the court's inherent jurisdiction - (2) The court's inherent jurisdiction was to be exercised to further trial fairness and justice, so there was no room for an automatic rule of application - A defendant was not entitled to a particular type of assessment just because the plaintiff had obtained such an assessment - (3) A court could only have recourse to its inherent jurisdiction sparingly and on a basis that did not conflict with s. 105 or rule 33 - This was reflected in the principle that a court could only exercise its inherent jurisdiction to the extent necessary to do justice between the parties (i.e., where it was necessary to permit a defendant to respond to the plaintiff's case) - See paragraphs 48 to 73.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See both Practice - Topic 4777 ].

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered - [See first Courts - Topic 2004 ].

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered - Ziebenhaus sued the defendants, alleging that he suffered a brain injury as a result of a skiing accident during an elementary school trip - He asserted that he had suffered a substantial future income loss due to vocational impairments that resulted from the brain injury - Ziebenhaus underwent a neuropsychological and psychovocational assessment by his own expert - The defendant also had Ziebenhaus examined by a neuropsychologist - The defendant then sought an order requiring Ziebenhaus to undergo a vocational assessment by a certified vocational evaluator - The motion judge exercised his inherent jurisdiction to grant the order, concluding that it would not be inherently unfair to order a vocational assessment given that, inter alia, the vocational assessment was directed to an important issue in the case - The motion judge noted that the defendant's neuropsychologist did not specifically address Ziebenhaus' vocational prospects in the same focused and thorough manner as Ziebenhaus' expert - The Ontario Divisional Court dismissed Ziebenhaus' appeal - The motion judge applied the correct legal principle in exercising his inherent jurisdiction by recognizing that the issue was whether the report sought by the defendants was necessary to address the plaintiffs' case - It could not be said that his decision to order the vocational assessment was either unreasonable or resulted in a denial of natural justice - See paragraphs 81 to 94.

Practice - Topic 4777

Discovery - Physical or psychological examination - Circumstances when ordered - Jack sued the defendants, alleging that he sustained multiple serious injuries as a result of a motor vehicle accident - He alleged a continuing functional impairment that prevented him from carrying out his normal employment - Jack arranged for and underwent a functional abilities evaluation (FAE) in 2011 - In 2012, the defendants sought an order requiring Jack to undergo another FAE to be conducted by a chiropractor - The motion judge exercised his inherent jurisdiction to grant the order, concluding that the assessment was necessary to ensure a fair trial since Jack had obtained an FAE of his own - The Ontario Divisional Court allowed Jack's appeal - The motion judge erred in principle by failing to consider whether the FAE was necessary to enable the defendants to meet the plaintiff's case - The mere fact that Jack had obtained an FAE was not sufficient to satisfy the test for the exercise of the court's inherent jurisdiction - Jack had already attended a defence medical examination by a physiatrist - The only effect of a further FAE would be to provide a further opinion that was corroborative of the physiatrist's opinion regarding Jack's functional capabilities - Since the defendants did not require this corroborative evidence to meet the plaintiff's case, it did not meet the standard of furthering trial fairness and justice - See paragraphs 99 to 109.

Practice - Topic 4779

Discovery - Physical or psychological examination - Circumstances justifying refusal - [See second Practice - Topic 4777 ].

Practice - Topic 4786

Discovery - Physical or psychological examination - By vocational therapist or psychologist - [See first Practice - Topic 4777 ].

Cases Noticed:

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 21].

Kostopoulos v. Jesshope (1985), 6 O.A.C. 326 (C.A.), refd to. [para. 21].

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, leave to appeal refused (2007), 379 N.R. 393 (S.C.C.), refd to. [para. 22].

Fantl v. Transamerica Life Canada (2008), 244 O.A.C. 183 (Div. Ct.), refd to. [para. 22].

Vanderidder v. Aviva Canada Inc. et al., [2010] O.T.C. Uned. 6222; 2010 ONSC 6222, refd to. [para. 23].

H. v. H., [1933] O.W.N. 490, refd to. [para. 25].

Tarmohamed v. Scarborough (City) et al. (1989), 68 O.R.(2d) 116 (H.C.), refd to. [para. 26].

Bernier v. Assan et al., [2006] O.T.C. 445 (Sup. Ct.), refd to. [para. 28].

Scissons et al. v. Lajoie et al., [2008] O.T.C. Uned. 43 (Sup. Ct.), refd to. [para. 29].

Grant v. Keane, [2001] O.T.C. 994 (Sup. Ct. Master), refd to. [para. 30].

Abou-Marie v. Basky, [1999] O.J. No. 6007 (Sup. Ct.), refd to. [para. 34].

Desbiens v. Mordini, [2002] O.J. No. 5975, refd to. [para. 35].

Moore v. Wakim, [2010] O.T.C. Uned. 1991; 2010 ONSC 1991, refd to. [para. 37].

Cook v. Glanville et al., [2012] O.T.C. Uned. 405; 2012 ONSC 405, refd to. [para. 39].

Huber v. Vanmeekeren, 2011 ONSC 3644, refd to. [para. 40].

80 Wellesley Street East Ltd. v. Fundy Bay Builders Ltd. et al., [1972] 2 O.R. 280 (C.A.), refd to. [para. 48].

College Housing Co-Operative Ltd. et al. v. Baxter Student Housing Ltd. et al., [1976] 2 S.C.R. 475; 5 N.R. 515, refd to. [para. 50].

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1990), 40 O.A.C. 117; 74 O.R.(2d) 161 (C.A.), refd to. [para. 57].

Waxman v. Waxman, [2012] O. J. No. 3780 (Sup. Ct.), refd to. [para. 57].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, folld. [para. 58].

R. v. Caron (G.) (2011), 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 2011 SCC 5, refd to. [para. 58].

Bellamy v. Johnson (1992), 55 O.A.C. 62; 90 D.L.R.(4th) 564 (C.A.), refd to. [para. 64].

Barnes v. Board of Education of London (City) (1994), 75 O.A.C. 69 (Div. Ct.), refd to. [para. 64].

Stelco Inc. et al., Re (2005), 196 O.A.C. 142 (C.A.), refd to. [para. 65].

Edmeades v. Thames Board Mills Ltd., [1969] 2 Q.B. 67 (C.A.), refd to. [para. 66].

Suchan v. Casella et al., [2006] O.T.C. 559 (Sup. Ct. Master), refd to. [para. 71].

Klassen v. Royal Insurance Canada, [2004] O.T.C. 1181 (Sup. Ct.), refd to. [para. 80].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 105 [para. 17].

Authors and Works Noticed:

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, p. 24 [para. 58]; generally [paras. 22, 66].

Osborne, Coulter A., Civil Justice Reform Project: Summary of Findings & Recommendations (2007), p. 71 [para. 44].

Counsel:

Darcy Romaine and Timothy Boland, for the applicants, Ziebenhaus;

Jerry O'Brien, for the applicant, Scott Jack;

Edward Tenki, for the respondents, Tyler Cripps and Donna Reath.

These appeals were heard at Toronto, Ontario, on December 16, 2013, before Sachs, Wilton-Siegel and Nolan, JJ., of the Ontario Divisional Court. Wilton-Siegel, J., delivered the following reasons for judgment for the court on April 2, 2014.