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.