Ziebenhaus et al. v. Bahlieda et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: MacFarland, Rouleau and Lauwers, JJ.A.
• Citation: (2015), 336 O.A.C. 135 (CA),2015 ONCA 471
• Date: 17 June 2015
• Subject Matter: COURTS,PRACTICE

Ziebenhaus v. Bahlieda (2015), 336 O.A.C. 135 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.035

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) v. 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)

(C59431; 2015 ONCA 471)

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

Ontario Court of Appeal

MacFarland, Rouleau and Lauwers, JJ.A.

June 24, 2015.

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, in a decision reported at (2014), 319 O.A.C. 111, 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. Ziebenhaus appealed.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The plaintiff in a personal injury lawsuit was ordered by a judge of the Superior Court to undergo an assessment by a non-medical practitioner (a vocational evaluator) - The plaintiff appealed - The issue was whether the Superior Court had an inherent jurisdiction to make such an order in light of s. 105 of the Courts of Justice Act, which permitted a court to order a party to undergo an assessment by someone who was a "health practitioner" - The Divisional Court held that judges of the Superior Court had the inherent jurisdiction to order that a party undergo a physical or mental examination by a person who was not a "health practitioner" as defined in s. 105 - The Ontario Court of Appeal affirmed the decision - Section 105 did not "occupy the field" - Health sciences and patient care had evolved to include a wide range of assessments by experts who were not "health practitioners" - Precluding their use in litigation would be contrary to good public policy - The conclusion that a judge had the inherent jurisdiction to order such an examination was not contrary to the intent of s. 105 and did not conflict with the relief available thereunder - While recourse to inherent jurisdiction should be used sparingly, it was necessary in the interests of fairness in this case as it was required by the defendant to meet the plaintiff's case.

Practice - Topic 4777

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

Practice - Topic 4786

Discovery - Physical or psychological examination - By vocational therapist or psychologist - [See Courts - Topic 2004 ].

Cases Noticed:

Vanderidder v. Aviva Canada Inc. et al., [2010] O.T.C. Uned. 6222; 2010 ONSC 6222, refd to. [para. 8].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 12].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 105 [para. 5].

Counsel:

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.

This appeal was heard on June 17, 2015, before MacFarland, Rouleau and Lauwers, JJ.A., of the Ontario Court of Appeal. Rouleau, J.A., delivered the following judgment for the court on June 24, 2015.