Nathan Tischler

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

A preliminary issue hearing was held to determine whether the costs of assessments to determine catastrophic impairment (CAT assessments) are included in the $50,000 limit on medical and rehabilitation benefits under the Statutory Accident Benefits Schedule.

The Tribunal held that CAT assessments are not included in the $50,000 cap, as section 25(1)5 of the Schedule requires the insurer to pay reasonable fees for preparing a CAT application, independent of the section 18(3) limits.

The applicant brought a motion for a resumption of a case conference to seek further orders, including adding a claim for an award, further productions, and changing the hearing format from written to in-person.

The respondent opposed the motion, arguing that the doctrines of issue estoppel and res judicata applied because the issues were allegedly disposed of at the initial case conference.

The Tribunal found that the prior decision was not final, as a claim for an award can be added at any time, making the production requests a live issue.

The Tribunal ordered a resumption of the case conference and changed the hearing format to in-person, noting that the complex issues in dispute would not be adequately addressed in a written hearing.

The appellant appealed the dismissal of his action under Rules 20 and 21 of the Rules of Civil Procedure.

At trial, the appellant had amended his pleading to abandon all claims except for the pecuniary value of the alleged loss of an interdependent relationship (his marriage) following an accident.

The Court of Appeal upheld the motion judge's decision to strike the pleading under Rule 21, finding that the amended pleading contained virtually no material facts regarding the injuries, how they caused the marriage breakdown, or the associated economic loss.

The appeal was dismissed with costs.