Court Has Inherent Jurisdiction to Order “Non-Medical” Assessment but Defendants Must Show Assessment is Necessary for Trial Fairness Ziebenhous v. Bahlieda 2014 ONSC 138

April 7, 2014 | Amelia M. Leckey

In a decision released on April 2, 2014, the Divisional Court affirmed the Court has inherent authority to order a plaintiff to attend a “non-medical” assessment.

The case dealt with two different actions where defendants had sought to have assessments completed by persons who were not health practitioners.  In Ziebenhous v. Bahlieda the defendant wished to conduct a Vocational Assessment.  In Jack v. Cripps the defendants wished to conduct a Functional Abilities Evaluation.  In both cases the defendants were successful on motions seeking to have the assessments conducted.

The Divisional Court noted that assessments will not be immediately ordered on the basis of “matching,” i.e. that a plaintiff had an FAE conducted, and therefore the defendant is entitled to have an FAE conducted.  Rather, assessments will only be ordered where a defendant can demonstrate it cannot meet the plaintiff’s case without the requested examination being conducted.

Interestingly the Divisional Court only upheld one of the underlying Orders.

In Ziebenhous, the plaintiff was going to rely on the neuropsychological and psycho-vocational assessment of Dr. Voorneveld.  In response the defendants wished to rely on a neuropsychological report of Dr. St.-Cyr, as well as a vocational assessor.  The motions judge had indicated Dr. Voorneveld’s report not only addressed the impairment caused by the traumatic brain injury suffered by the plaintiff, but also the supports required by the plaintiff to support him within an occupational setting.  Dr. St.-Cyr had addressed the impairments caused by the injury, but did not address the consequences of those impairments on the plaintiff’s vocational pursuits.  As such it was reasonable to order the plaintiff to undergo a vocational assessment.

In terms of the action by Jack, the plaintiff had obtained an FAE report, but had objected to the defendants obtaining an FAE report.  The defendant in the Jack action had obtained a defence medical report from a Dr. Clifford, a physiatrist, in which the doctor opined that the plaintiff had no restrictions or limitations that would prevent a full return to work.  The Divisional Court held that, since the defendants were taking the position the plaintiff could have returned to work already, the FAE was not necessary for trial fairness.  In making this decision, the Divisional Court noted, among other things, that the defendants had failed to put forward evidence to show that the proposed FAE was necessary in order to ensure trial fairness.

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