Citation: The Applicant vs. Unica Insurance Inc., 2019 ONLAT 18-009769/AABS
Tribunal File Number: 18-009767/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
[The Applicant]
Applicant
and
Unica Insurance Inc.
Respondent
PRELIMINARY ISSUE DECISION
PANEL:
Jesse A. Boyce, Adjudicator
APPEARANCES:
For the Applicant:
Anushika Anthony, Counsel
For the Respondent:
Angela Comella, Counsel
HEARD:
In Writing on: September 11, 2019
OVERVIEW
1The applicant, [ ], was injured in an automobile accident on July 27, 2014 and sought benefits from the respondent, Unica Insurance, pursuant to O. Reg. 34/10, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). [The applicant] applied for various benefits that Unica denied, including an income replacement benefit (“IRB”). [The applicant] disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
2An in-person hearing was conducted, and the Tribunal issued a decision on December 12, 2017, denying [the applicant]’s claim for IRB. [The applicant] did not appeal the decision which bears the Tribunal file number 16-002234/AABS.
3Meanwhile, on October 15, 2018, [the applicant] submitted a new application to the Tribunal for resolution of her entitlement to a post-104-week IRB. This is the current file before the Tribunal.
4An in-person hearing was set—since adjourned—pending the outcome of this written preliminary issue hearing on the IRB.
ISSUES
5The sole preliminary issue listed in the Case Conference Order is as follows:
i. Is the applicant precluded from applying for the post-104-week income replacement benefit as it has already been dealt with as a result of a previous application to the Tribunal and adjudicated in file number 16-002234/AABS?
RESULT
6I find [the applicant] is precluded from proceeding with her claim for a post-104-week IRB as it has already been adjudicated in her previous application at the Tribunal and the limitation period has elapsed.
ANALYSIS
Res judicata applies
7Generally, res judicata is a legal principle preventing matters that have been previously decided to be heard again. While some exceptions exist, there are three essential criteria for the principle to apply: first, there must be an earlier decision on the issue; second, there must be a final judgment on the merits; and third, the same parties must be involved. The purpose of the principle is to provide finality and to promote consistency in decisions. I find on the evidence that res judicata applies to the facts of this hearing and, accordingly, [the applicant] is precluded from applying for an IRB.
8First, I find it clear that there was an earlier decision on this issue. As noted, an extensive hearing was conducted in Tribunal file 16-002234/AABS and a final decision was issued by the Tribunal on December 12, 2017. The decision dealt with both pre and post-104-week IRB, and, as Unica argues, the Tribunal denied [the applicant]’s entitlement to post-104 IRB.
9While [the applicant] argues that post-104 IRB were not properly before the Tribunal, I disagree and find there is considerable evidence to the contrary. For starters, the application was filed, and the hearing then took place after the 104-week mark, so [the applicant] was able to present and the Tribunal able to weigh evidence on post-104-week entitlement. Not only was the Tribunal in a position to consider post-104 evidence, I find it did, as the decision states that the onus to prove pre and post-104 IRB entitlement rests with [the applicant] and finds that [the applicant] was not entitled to IRB beyond the first 104 weeks of disability because she did not satisfy her evidentiary burden. Further, the hearing transcript provided by Unica shows [the applicant]’s counsel clearly asking the Tribunal to consider post-104 IRB and the application to the Tribunal for IRB does not specify an end date. Finally, [the applicant] did present evidence of post-104 entitlement at the hearing: she testified on her post-104 condition, called medical experts who examined her during the post-104 period and submitted and referred to medical records drafted during the period. Simply put: I find it unlikely that [the applicant] restricted her evidence to the pre-104-week IRB period or was under the assumption she had to.
10Second, I find there is a final judgment on the matter as the Tribunal issued its decision on December 12, 2017. Unica submits that [the applicant] failed to apply for reconsideration of the decision by the Tribunal within the requisite time period. Further, [the applicant] also failed to seek an appeal at the Divisional Court. Unica argues that if [the applicant] disagreed with the outcome of the decision or believes that the Tribunal considered evidence not properly before it, the opportunity for her to dispute it was in the immediate aftermath of the decisions release, not by shoehorning it into a fresh application ten months later. I agree.
11In reply, [the applicant] argues “she was not expecting a ruling on post-104 IRB in the Tribunal’s decision” and that fairness dictates that she should be allowed to proceed, despite the facts above. She argues that her current application will be proceeding regardless of the outcome and that it would be efficient for the Tribunal to hear all of the matters together. Further, [the applicant] offers a public policy consideration for fairness, arguing that because she is currently receiving ODSP, that it would be more beneficial for tax payers that she receives an IRB. Finally, she argues that, in spite of the foregoing, the Tribunal did not provide adequate reasons in denying the IRB.
12I disagree. I find that the post-104 IRB was under consideration by the Tribunal as it is clearly stated in multiple places in the decision and find the reasons of the Tribunal were adequate. Further, I find that the opportunity for a timely challenge of those reasons, in any event, has long since passed. While I am alive to [the applicant]’s argument about judicial efficiency and public policy, I find these arguments also miss the point that the finality of the original decision and her failure to commence an appeal in a timely manner gives rise to res judicata.
13Third, I find, and it is undisputed by the parties, that the parties to this current proceeding are the same as the original proceeding bearing Tribunal file number 16-002234/AABS. Accordingly, this criterion is also met.
14For these reasons, I find that the principle of res judicata applies to the issue of [the applicant]’s entitlement to the post-104-week IRB, as there is clear evidence that it was at issue in a previous application, between the same parties, where a hearing was held and where the Tribunal delivered a final judgment denying entitlement that was then not appealed by [the applicant].
Limitation period expired
15As a secondary argument, Unica submits that even if the principle of res judicata was somehow not applicable in this matter and that the post-104 IRB was not properly before the Tribunal in 16-002234/AABS, that the two-year limitation period for [the applicant] to appeal Unica’s denial has elapsed. Unica argues that pursuant to section 56 of the Schedule, [the applicant] did not commence her new application within the requisite period.
16In response, [the applicant] argues that the Tribunal should exercise its discretion under section 7 of the Licence Appeal Tribunal Act, 1999 S.O. 1999 (“LAT Act”), to extend the limitation period because pre and post-104 IRB should not be treated as a single claim and her condition deteriorated over time.
17While I find res judicata applies, for completion, I disagree with [the applicant] and find Unica’s argument persuasive. I find the IRB was denied by Unica on February 4, 2015. This application was brought on October 15, 2018, well beyond the two-year limitation period prescribed by the Insurance Act and the Schedule. Further, the Tribunal’s final decision on 16-002234/AABS was released on December 12, 2017. The window for appeal and reconsideration of that decision passed on January 2, 2018.
18In her response, [the applicant] references section 7 of the LAT Act, which allows the Tribunal to exercise its discretion to extend a limitation period if certain factors are met, and even inserts the language into her submissions, but ultimately provides no substantive submissions on the four factors that the Tribunal considers: bona fide intention to appeal, the length of the delay, prejudice and merits of the claim.1 To its credit, in reply submissions, Unica does provide argument on the four factors, which I find to be compelling evidence not to extend the limitation period in this matter.
19First, I find [the applicant] did not have a bona fide intention to appeal her denial, not only because it was before the Tribunal in 16-002234/AABS, but also because she failed to take advantage of the reconsideration process or apply to the Divisional Court on receipt of the final decision. Second, the length of the delay was, in my view, unreasonable, as this new application was not submitted to the Tribunal until ten months after receipt of the final decision in 16-002234/AABS and nearly two years after the expiration of the limitation period for the denial of the IRB. As [the applicant] has not provided an appropriate reason for the delay, neither delay constitutes an excusable amount of time. Third, while the applicant will always be more prejudiced by bright-line limitations, I find Unica would also be prejudiced by an extension, as it has not taken steps to assess IRB entitlement because it relied on the Tribunal’s final decision regarding entitlement. Finally, I find there is no merit to the claim for IRB, as the Tribunal dealt with that issue previously and found [the applicant] failed to prove her case.
20Accordingly, I find the limitation period has elapsed and [the applicant] is time-barred from proceeding with her claim for IRB. I decline to exercise the Tribunal’s discretion under section 7 of the LAT Act to extend the limitation period.
ORDER
21[The applicant] is precluded from proceeding with her claim for post-104-week IRBs, pursuant to the principle of res judicata, as her claim has already been adjudicated by the Tribunal. Further, the two-year limitation period has elapsed, and, on the facts, I decline to exercise the Tribunal’s discretion under section 7 of the LAT Act to extend it.
22The in-person hearing on the remaining substantive issues shall proceed as scheduled.
Released: September 18, 2019
Jesse A. Boyce
Adjudicator