Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners

We previously posted on the Divisional Court's decision in Ziebenhaus v.Bahlieda (click here for our original post).  In that case, the Divisional Court held that courts have inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner".  In Ziebenhaus, the particular assessor was a vocational assessor.

The Court of Appeal has now confirmed the Divisional Court's decision at 2015 ONCA 471 (C.A.).
It held:

[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.

Ziebenhaus may make it easier to obtain orders compelling plaintiffs to attend independent medical examinations with non-medical practitioners; however, it will still be important to have good supporting materials to show the assessments are necessary to ensure justice and fairness.

Plaintiff Ordered to Attend Second IME

A recent decision highlights the importance of wording correspondence when disputes arise over IMEs.

In Caesar v. Griaznov, 2014 ONSC 4329 (S.C.J.), the plaintiff alleged both physical and psychological injuries.  Defence counsel arranged IMEs with a psychiatrist and a physiatrist.  Plaintiff's counsel advised the plaintiff would attend only one IME of the defendant's choosing.  A clerk in defence counsel's office sent a letter stating the defendant "chose" the psychiatrist.  She later followed up in an email that read as though the clerk assumed the physiatry IME would proceed as well.

Master Muir ordered the plaintiff to attend the second examination.  Since the plaintiff was claiming two distinct types of injury (physical and psychological), fairness dictated the plaintiff be compelled to attend.  There would be no overlap between the two examinations.  There was little unfairness to the plaintiff since there was no trial date pending and a mediation date was several months away.  In contrast, there was the risk of significant unfairness to the defendant who would be required to defend a central element of the plaintiff's claim without the benefit of a current expert assessment.

Master Muir denied the successful defendant costs given the clerk's letter which suggested the defendant had "chosen" only one examination.  The decision on costs seems odd given that Master Muir was satisfied the defendant always intended to preserve her right to a second examination.  Counsel should be alert to the wording used in correspondence relating to disputed IMEs.

Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners

For several years, there have been two streams of cases regarding whether courts can order independent medical assessments by non-health practitioners under s. 105 of the Courts of Justice Act and r. 33.  The Divisional Court considered the issue in Ziebenhaus v. Bahlieda, 2014 ONSC 138 (S.C.J.).

The Court held that court have inherent jurisdiction to order physical or mental examinations by non-health practitioners.  The inherent jurisdiction is to be exercised to further trial fairness and justice.  There is no automatic rule that "levels the playing field" by providing the defendant is entitled to each type of report that is obtained by the plaintiff.  The focus is on the need for a particular examination in order to meet the plaintiff's case.

Ziebenhaus provides guidance on an area that has called out for clarification for some time. Defendants who bring motions to compel IMEs should make sure they address how the proposed assessment will further trial fairness and justice.  It may be that it will become easier to obtain IMEs with future care cost assessors, occupational therapists and so forth than in the past.

Second Defence Medical Ordered

In Galea v. Firsker, [2013] ONSC 1666 (S.C.J.), there is an interesting twist to the usual motion to compel the plaintiff to attend a second defence medical examination.

The plaintiff alleged soft tissue injuries.  The defendant's first defence medical with a neurologist was obtained prior to the plaintiff serving any reports.  After being served with reports by an orthopedic surgeon and a physiatrist, the defence sought to have the plaintiff examined by a physiatrist. 

McDermot J. ordered the plaintiff to attend the defence medical.  Even though there was an element of "buyer's remorse" in the defendant's request for a second assessment, denying the request would work an injustice, as the defendant would have no way to respond to the plaintiff's medical evidence.  The fact that there was no affidavit from the neurologist, there was no change in circumstances and there was a possibility the trial may have to be adjourned, the primary concern was trial fairness.

The decision in Galea seems to follow the recent case law where the emphasis is on trial fairness above other factors.

Further Defence Medical Ordered After New Evidence Produced

In Low v. Clarke, [2013] OJ. No. 1703 (S.C.J.), the defendant brought a motion seeking to compel the plaintiff to attend a further defence medical with a neurologist.

The plaintiff was examined by a neurologist, Dr. Upton.  Following the examination, the plaintiff served over 400 photographs of the plaintiff post accident.  According to Justice Glithero, the photographs appeared to show the plaintiff in various physical activities that were inconsistent with what she had previously reported to doctors.  The defendant filed a letter by Dr. Upton stating that a further examination would be important and useful to his opinion at trial.

Justice Glithero cited with approval a number of factors from Bonello v. Taylor, 2010 ONSC 5723:

1.  The request may be legitimate where there is evidence the plaintiff's condition has changed or deteriorated.  Justice Glithero added to this factor: where new evidence is disclosed and is material to the opinion and to any proper assessment of the extent and nature of injuries sustained.
2.  Trial fairness should be the guiding principle.
3.  Ordering further examinations may be just where they are necessary to enable the defendant to fairly investigate and call reasonable responding evidence at trial.

Justice Glithero allowed the motion and ordered a further examination.  Although these types of motion are largely fact specific, it is important to remember the guiding principle of fairness when deciding what evidence to present to the court.

Second Independent Medical Examination - Evidence

What evidence is necessary on a motion to compel the plaintiff to attend a second independent medical examination?

In Nasir v. Kochmanski, 2012 ONSC 4088 (S.C.J.), the plaintiff was a minor who was injured in a motor vehicle accident.  The claim alleged the plaintiff was struck while a pedestrian and sustained a head injury and various psychological impairments.  He had been assessed by a number of medical doctors and psychologists, both treating and arranged by plaintiff`s counsel.  He had been assessed by a paediatric neurologist on behalf of the defendant, although no report had been prepared.  The defendant sought to have the plaintiff assessed by a psychologist.  The proposed assessor wrote a letter to defence counsel outlining the assessment, its length, information she would require from the plaintiff`s parents, and test results from other assessments she required.

Justice Daley permitted the assessment.  The proposed assessment was outside the scope of expertise of the neurologist, according to the psychologist`s letter.  There was no evidence the assessment would delay trial or prejudice the plaintiff.  Since the plaintiff was very young, his evidence would be of limited evidentiary value, and the most probative and reliable evidence would have to come from experts.  Trial fairness favoured the second examination.

It should be noted that the evidence in support of the motion appears to come from a letter from the proposed assessor.  Justice Daley stated that it would have been preferable to have an affidavit or report from the neurologist outlining the need for a further examination, but accepted that there was enough evidence to support the motion.  There is some inconsistency in the case law as to the form of evidence needed on a motion for a further examination, and counsel should carefully consider whether it would be beneficial to have affidavit evidence.