Ziebenhaus v. Bahlieda

2012 ONSC 3787 (CanLii) (Sup Ct.) (Edwards J.)
2013 ONSC 1397 (CanLii) (Sup Ct.) (Mulligan J.)
2014 ONSC 138 (CanLii) (Div. Ct.) (Sachs, Wilton-Siegel, and Nolan JJ.)

Plaintiff Counsel: Darcy Romaine |  Tim Boland
Defence Counsel: John Olah |  Robert Betts

This case involved a brain-injured youth who had been injured in a skiing accident as part of a school trip. Liability was challenging as it dealt with school supervision policies, ski hill testing protocols, waivers, terrain park design, and human perception factors. The damages section was equally challenging as the youth suffered a mild traumatic brain injury that did not appear to affect his intellect, but did affect his behavior and judgment.

We had consented to the defendants obtaining a variety of medical assessments to meet the case against them. The defendant Mt. St. Louis Moonstone, however, wanted a vocational assessment, which we refused. The defendant already had a neuro-psychological report that explored Mr. Ziebenhaus’ future employability. The defendant brought a motion before Edwards J.

We were successful in arguing that the vocational assessor was not a “medical practitioner” as defined in s. 105 of the Courts of Justice Act and that the vocational assessment would not qualify under the “diagnostic aid” test developed under s. 105. Edwards J. agreed that the facts did not allow the defence to rely on statutory authority to make the order. However, Edwards J. alternatively relied on the historic, inherent jurisdiction of the court to make the order in any event.

We sought leave to appeal before Muligan J. and obtained leave on the basis of two conflicting streams of cases: one stream posits that a Superior Court Judge has the inherent jurisdiction to order a party to attend an assessment with a non-medical practitioner, the other stream posits that the Court only derives its authority to order a person to be examined through statute. Neither stream of cases analyzed the scope or limits of inherent jurisdiction.

For our appeal factum, we researched the scope of the Court’s inherent jurisdiction, the historical powers of the courts of Chancery and Common Law, the historical development of examination for discovery and medical examinations and we raised a statutory interpretation argument of the Rules and Courts of Justice Act.

In short, since the 15th century, the courts of Chancery and Common Law never had or exercised the power to compel discoveries or medical examinations. The power was introduced in Ontario by statute in the late 19th century. The first cases to interpret the statute comment that prior to the statute’s introduction, the Court did not have inherent jurisdiction to compel persons to be examined. Furthermore, the Ontario Court of Appeal has held that where the rules “occupy the field,” as section 105 and rule 33 does, that inherent jurisdiction must respect the limits imposed by the legislature.

While the Divisional Court held that the Court does have inherent jurisdiction to make such orders, the decision is internally inconsistent with the Divisional Court holding in paragraph 45 that s.105 does not completely occupy the field, and at paragraph 70 that it is possible that s.105 does completely occupy the field. Leave has been granted by the Ontario Court of Appeal.

In the wake of the Divisional Court’s decision in Ziebenhaus, the Civil Rules Committee is now considering whether to make changes to the Rules of Civil Procedure, whether changes are required to s.105 of the Courts of Justice Act, and if so what the scope of those changes should be.