Loophole, lack of direction in Occupational Therapy Act

A controversial loophole in the Occupational Therapy Act has allowed the Ontario Superior Court to apply discretionary jurisdiction in the assessment of future care costs for the first time striking down a London, Ont. man’s argument for a stricter interpretation of the act.

Randall Scott Cook was ordered to undergo an in-home occupational therapy assessment within the next two weeks by Justice Dougald McDermid Jan. 16.

Cook had previously sought a “substantial” amount in future care costs in 2010, according to Cook v. Glanville and The City of London.

He also argued that an order by the City of London requiring him to complete an in-home therapy assessment to determine the future care costs he originally sought wasn’t necessary.

Cook also argued the city’s order couldn’t be granted by the Superior Court solely on the issue of trial fairness, particularly when there was no evidence that the assessment was necessary for the diagnosis of a health practitioner in determining his physical limitations. He also produced an affidavit from Dr. Michael Devlin, a Toronto doctor who specializes in physical rehabilitation, to help determine future care costs.

But, in an unusual move, McDermid ruled the assessment was in fact necessary, writing in Cook, that it was necessary “not for . . . any diagnosis that he [Devlin] might make but that taken with his diagnosis it is required to permit the preparation of a future care cost report. . . .

McDermid cited Superior Court Justice Thomas Granger’s comments from the 2010 Vanderidder v. Aviva Canada Inc. decision: “The jurisdiction to order non-medical expert assessments is an area of controversy in Ontario courts. The decisions on this topic divide into two streams at the Superior Court of Justice level, and there does not appear to be a Court of Appeal decision settling the matter. In the first set of cases, courts generally interpret s. 105 and r. 33 narrowly, allowing non-medical assessments only if required as diagnostic aids for medical practitioners. The divergent stream invokes the discretionary inherent jurisdiction of the court to ensure justice is done in any particular case. In these cases, a non-medical expert assessment is usually ordered in the interests of fairness and justice.”

But McDermid went on to note that because no decision existed from the Court of Appeal regarding non-medical expert assessment in cases specifically involving future care costs, he was required to refer to the Divisional Court for the first time, which leaned toward the latter stream.

“In the absence of any decision from the Court of Appeal, I am persuaded to follow the decision of the Divisional Court in Desbiens [v. Mordini] as enunciating the proper approach to this issue,” wrote McDermid.

As a result, the judge ruled Cook must attend the in-home assessment within the next two weeks, with submissions on costs to be filed in the next 30 days.

If the matter goes to trial, the health practitioner who conducted the assessment could be called as an expert witness, according to Cook.

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