“The parties’ dispute before us centres on whether the motion judge exceeded his jurisdiction when, relying on the court’s inherent jurisdiction, he allowed the respondent’s request for an order that Ziebenhaus be examined by a vocational assessor selected by the respondent. Section 105 of the [Courts of Justice] Act permits a court to order a party to undergo a physical or mental examination by a “health practitioner”:
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- (1)In this section, “health practitioner” means a person licensed to practise 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.
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(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.
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The Divisional Court concluded that s. 105 does not “occupy the field”. It noted that the health sciences and patient care have evolved to include a wide range of assessments by experts who are not “health practitioners”. Such assessments cannot all be characterized as diagnostic aids to the opinion of a “health practitioner”. Precluding their use in the litigation context would be contrary to good public policy. In the light of these circumstances, the court said, at para. 45:
The only conclusion that can be drawn from these circumstances is that section 105 does not completely “occupy the field” in the sense that it makes no provision for physical and mental examinations that are routinely used in the care and treatment of injured persons, and in litigation, that are conducted by persons who do not qualify as “health practitioners” under section 105. Accordingly, there is a gap in the statutory provisions regarding the entitlement of a party defending an action to require a plaintiff to submit to such examinations.
On the issue of whether an order for an assessment by an individual who is not a “health practitioner” would be contrary to the intent of s. 105, the Divisional Court determined that it would not.
I see no error in the Divisional Court’s analysis and conclusion.
As set out by the Supreme Court of Canada in R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 133:
[T]he inherent jurisdiction of superior courts is a significant and effective basis for preventing abuse of the court’s process and ensuring fairness in the trial process. This enduring and important jurisdiction of the court, if it is to be removed can only be accomplished by clear and precise statutory language.”