Stephanie Gomes v. Aviva General Insurance, 2020 CanLII 103483

Citation: Gomes vs. Aviva General Insurance, 2020 ONLAT 19-005653/AABS

Released Date: 12/22/2020

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:

Stephanie Gomes

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Aggrey Msosa

APPEARANCES:

For the Applicant:

Kevan Wylie

For the Respondent:

Mohamed R. Hashim

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on November 4, 2016, and sought benefits pursuant to Ontario Regulation 34/10 under the Insurance Act, RSO 1990, c I.8.The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2On June 20, 2018, the applicant submitted an application to the Tribunal disputing 10 benefits that the respondent had denied. A case conference was scheduled for October 19, 2018 but both the applicant and her representative did not attend. A second case conference was scheduled for October 24, 2018. The applicant’s representative removed himself prior to the case conference. The applicant also failed to attend. Adjudicator Grant referred the matter to an in-person hearing scheduled for January 9, 2019 and issued a Notice of Dismissal (NOD) to the applicant. The parties were advised to make written submissions by November 26, 2018 on the Tribunal’s intention to dismiss the applicant’s appeal without a hearing pursuant to Rule 3.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “Common Rules”).

3On November 27, 2018 the respondent wrote to the Tribunal on the applicant’s failure to notify the Tribunal of her intentions to continue with her appeal and sought the matter be dismissed pursuant to Rule 3.4(d). On November 28, 2018 the respondent filed a formal Notice of Motion to have the matter dismissed.

4On December 4, 2018, Vice Chair Terry Hunter issued an order dismissing the appeal as abandoned.

5On May 28, 2019 the applicant submitted a second application with a new legal representative disputing five issues, four of which were in the first application dismissed by the Tribunal. A case conference was scheduled for October 16, 2019. At the case conference, the respondent raised a preliminary issue giving rise to this written hearing to have the duplicate claims in the second application barred as having already been dismissed.

PRELIMINARY ISSUES

6The issues identified in the Case Conference Order are as follows:

i. Is the applicant precluded from reopening an application on issues that were previously “dismissed as abandoned” by the Tribunal?

ii. Are the parties entitled to costs?

RESULT

7I find that the applicant is precluded from reopening an application on issues that were previously dismissed as abandoned by the Tribunal. Neither party is entitled to costs.

ANALYSIS

i. Is the applicant precluded from reopening an application on the issues that were previously “dismissed as abandoned” by the Tribunal?

8The respondent submits that the tribunal dismissed the applicant’s application because the applicant failed to attend two scheduled case conferences without providing the Tribunal and the respondent reasons for her failure to attend. The respondent argues that by filing a second application on issues previously dismissed, the applicant has committed an abuse of process and is in violation of the principle of res judicata¹. The respondent quoted the Tribunal’s decision in M.K. v Aviva Insurance Canada(“MK”)² that the principle of res judicata prevents a party from re-litigating a matter that has already been decided. It is based on the principle of finality in decisions, preventing duplicate litigation, inconsistent decisions, undue cost and inconclusive proceedings³. In this case the adjudicator concluded that res judicata did not apply as the issue had not been decided on the merits (i.e. did not meet the third prerequisite for applying res judicata).

9The respondent argues that the facts of this matter meet the criteria of res judicata, namely: (i) the parties are the same; (ii) the Tribunal has the sole jurisdiction to hear accident benefits claim; (iii) a motion hearing was held resulting in a dismissal, and (iv) the dismissal of the hearing is final, subject only to reconsideration or judicial review and neither was sought by the applicant.⁴

10The respondent submits that the following four treatment plans for medical benefits which were the subject of the first application should be barred from proceeding in the second application:

i. $3,641.09 for physiotherapy treatment;

ii. $3,695.50 for psychological treatment;

iii. $1,384.70 for chiropractic treatment; and

iv. $1,977.05 for chiropractic treatment.

11The applicant submits that res judicata does not apply in this case because there has been no prior adjudication on the merits of this case and the dismissal order dated December 5, 2018 is not a final judgement⁵. It is the applicant’s position that this is not a case of re-litigation of a matter as no full and robust hearing was conducted by the Tribunal. The applicant disagrees with the respondent that the applicant did not follow the Reid factors to set aside a dismissal order as outlined in C.C. v Certas Direct insurance Company.⁶ A party seeking to set aside a dismissal order must (a) provide a reasonable explanation for the delay; (b) satisfy the court that the deadline was missed through inadvertence; (c) demonstrate that this motion was brought promptly; and (d) rebut the presumption of prejudice. If the presumption is rebutted, the burden then shifts to the respondent to demonstrate they would suffer actual prejudice should the dismissal order be set aside.

12The applicant submits that she has satisfied the Reid factors and argues that the delay was due to the applicant seeking new counsel, that the deadline to file written submissions was missed due to inadvertence as she was not represented by counsel, that she moved promptly to dispute the entitlement, and that the respondent did not suffer prejudice.

13Pursuant to s. 25 of the Statutory Powers Procedure Act, R.S.O. 1990 (the “SPPA”), the Tribunal has the authority to determine its own practices and procedures. The Tribunal’s authority to dismiss a proceeding without a hearing, and the process thereof, is derived from section 4.6 of the SPPA and from Rule 3.4 of the Common Rules. These rules were made to give guidance to the Tribunal in matters where a party, for whatever reason, does not comply with the Tribunal’s orders. In addition, pursuant to s. 23(1) of the SPPA, the Tribunal may “make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”.

14The application of res judicata is a two-step process. First, there are three essential preconditions that must be met before res judicata could be applied. Second, even if these preconditions are met, a decision maker should turn their mind to whether they should exercise their discretion to apply res judicata if its application will give rise to injustice in the particular case. Caselaw and tribunal decisions suggest that a dismissal order for abandonment is unlikely to meet the second precondition for the application of res judicata, that a decision be final, because such orders are not decisions “on the merits”.

15The respondent in this case has raised the Tribunal’s decision in M.K.⁷ as an authority for the principle that res judicata prevents a party from re-litigating a matter that has already been decided. While the adjudicator in that case did outline the preconditions and purpose for the application of the doctrine,⁸ they ultimately found that the doctrine of res judicata did not apply.

16In that case, the respondent brought a motion to dismiss the applicant’s application for attendant care benefits from August 1, 2016 onwards on the basis that the applicant’s entitlement had been previously determined by the Financial Services Commission of Ontario (“FSCO”). In the FSCO decision, the arbitrator specified the applicant’s entitlement to attendant care benefits for the period of September 15 to December 31, 2013 and then stated, “no other/further benefit is payable”.⁹ The respondent argued this order was prospective and res judicata applied to bar the applicant’s application for future benefits.¹⁰

17The adjudicator found, at paragraph 16, that res judicata did not apply because:

a) the adjudicator had not adjudicated the issue of attendant care benefits for the period from August 1, 2016 onwards on the merits; and

b) the decision of the adjudicator was not a final judgment on the applicant’s entitlement to future attendant care benefits.

The adjudicator went on to comment at paragraph 17 that “res judicata is a discretionary remedy which has limited application in disputes for ongoing benefits under the Schedule because the Schedule allows an insured to file multiple applications for some benefits”.

18I do not agree with the respondent that res judicata applies in this case because the issues in dispute were not adjudicated on their merits and there has not been a finality.

19However, I am also not satisfied that the applicant met the Reid factors test because she did not provide the Tribunal with a reasonable explanation why she failed to attend the case conferences nor did she advise that the deadline set in the order was missed through inadvertence. I find that the applicant did not inform the Tribunal of her intention to continue with the application resulting in the Tribunal’s dismissal of the application as abandoned according to the Common Rules. There is no evidence that the applicant complied with any of the Tribunal’s orders. Even if the applicant had no legal representation, it was incumbent upon her to advise the Tribunal or the respondent that she was seeking legal representation and to give her time to comply with the orders. She can not blatantly ignore Tribunal orders. The Tribunal orders have the same effect and force as court orders, and neither can be ignored without consequences.

20The parties made submissions regarding prejudice. The respondent argued that it will suffer prejudice if the applicant is allowed to re-litigate the issues dismissed in the first application. The applicant argues that the respondent has not provided any evidence that it will suffer prejudice. I agree with the applicant that the respondent has not directed me to any evidence in their submission that they have suffered prejudice. However, the burden is on the applicant to rebut the presumption of prejudice and I am not satisfied that the applicant has done so in this case. In addition to not being satisfied that the applicant has met the Reid factors, I am of the opinion that bringing these issues back is an abuse of the Tribunal’s process.

21Abuse of process is a more flexible doctrine than res judicata. It is often applied in cases where one or more of the preconditions for the application of res judicata are not met. The Tribunal has authority under the SPPA and the common law to apply abuse of process to preserve the integrity of its proceedings.

22In this case the respondent has argued abuse of process by the applicant. Although the respondent has not submitted case law on abuse of process for my consideration. Although I am not prepared to make a finding of res judicata on the facts of this case. I am exercising my authority pursuant to s.23(1) of the SPPA to find that the re-opening of the issues constitutes an abuse of process. I find that the applicant cannot bring back the issues that were dismissed in the first application for abuse of process.

ii. Costs

23Section 17.1 of the SPPA and Rule 19.1 of the Common Rules permit a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

24Both the respondent and the applicant requested costs in this matter. The respondent submits that the applicant’s abuse of process for filing a new Tribunal application addressing the same issues, after the issues were dismissed is unreasonable, frivolous, vexatious and bad faith. The respondent specifically requests costs in the amount of $2,000.00.

25The applicant is also seeking costs for responding to the respondent’s frivolous and vexatious motion in the amount of $1,000.00.

26I deny the parties’ requests because I am not convinced that the actions of the parties in this case meet the level of conduct contemplated by Rule 19.1 for a cost award. A difference of opinion on whether the treatment plans dismissed in a prior application can be brought back and/or responding to a motion does not establish the grounds for costs. The Rule requires bad faith, vexatious, frivolous or unreasonable behaviour in a proceeding. While I am alive to the decision in M.O. v Unifund Assurance Company¹¹, where an adjudicator found that refiling a second application on the same issues without material change from a previous application, amounted to abuse of process warranting costs, I find that this case is distinguishable because the second application included other treatment plans and issues that were not part of the first application. Secondly, in the second application the applicant was represented by a different legal firm from the one that submitted the first dismissed application. I find that costs are not warranted in this matter.

ORDER

27For reasons outlined above, I find:

a. The applicant is precluded from reopening an application on the four issues outlined in paragraph 10 that were previously dismissed as abandoned by the Tribunal for abuse of process.

b. A request for costs by either party is denied.

c. As soon as possible, the Tribunal will schedule another case conference to deal with the other substantive issues in the second application that were not part of the dismissed application.

Footnotes

1. 1Respondent’s submissions at para 26.
2. 216-003909 v. Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT) [MK].
3. 3Ibid at para 14.
4. 4Ibid at para 15.
5. 5Applicant’s submissions at para 25.
6. 617-004934 v Certas Direct Insurance Company, 2019 CanLII 22216 (ON LAT); see also Sokoloff v Bateriwala, 2019 ONSC 5442.
7. 7M.K., supra note 3.
8. 8Ibid at paras. 14-15.
9. 9Ibid at paras.11-12.
10. 10Ibid at para. 12.
11. 1117-000043 v Unifund Assurance Company, 2017 CanLII 35317 (ON LAT).