Licence Tribunal File Number: 19-011494/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:
Fatima Alazab
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Andrew Franzke, Counsel
For the Respondent:
Christine McKenna, Counsel
Heard:
By way of written submissions
OVERVIEW
1Fatima Alazab, (“the Applicant”), was involved in an automobile accident on December 8, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The Applicant was denied certain benefits by Aviva General Insurance, (“the Respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The issues in dispute listed in the application are:
I. Is the Applicant entitled to a non-earner benefit of $185.00 per week from January 5, 2017 to May 15, 2018?
II. Is the Applicant entitled to $4,526.00 for chiropractic treatment recommended by Spinetec Health Care Solutions in a treatment plan dated September 1, 2020?
III. Is the Applicant entitled to the assessments recommended by Meditecs Independent Medical Examinations, as follows:
i. $2,260.00 for a psychological assessment plan dated February 11, 2019; and
ii. $2,260.00 for a driver rehabilitation assessment plan dated February 21, 2019?
IV. Is the Respondent liable to pay an award under section 10 of Regulation 664?
V. Is the Applicant entitled to interest on any overdue payment of benefits?
3A case conference was held on November 2, 2020 and the Respondent raised a preliminary issue. It claims that the Applicant is precluded from proceeding with her application because the issues raised in the current application are res judicata. This written preliminary issue hearing was scheduled to address the preliminary issue.
PRELIMINARY ISSUE
4Is the Applicant barred from proceeding with her application because the Tribunal has previously determined that the subject accident did not cause any of the Applicant’s impairments?
RESULT
5I find that the Tribunal previously determined that the Applicant sustained no impairments as a result of the subject accident. She cannot be successful in the current appeal without a determination that is contrary to the previous determination. Thus, the doctrine of res judicata applies and she is barred from proceeding with her application.
BACKGROUND
6The Applicant and Respondent were before the Tribunal in matter number 18-011952/AABS (“the first Application”). There, the Applicant sought entitlement to various medical benefits and the costs of examinations.
7The Adjudicator in that decision found that, on a balance of probabilities, the Applicant’s injuries were not caused or worsened by the subject accident. As a result, the Applicant was not entitled to the goods and services being sought.
8The Applicant’s claim for the current Application arises from the same accident noted in the first Application, which occurred on December 8, 2016.
THE LAW
9The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. Four preconditions must be established before the adjudicator can determine whether to exercise their discretion to apply res judicata.1 The factors are:
I. The parties must be the same in both actions;
II. The prior claim must be within the jurisdiction of the Court/Tribunal;
III. The prior adjudication must have been on the merits; and
IV. The prior decision must have been a final judgement.2
10Res judicata can be waived in the following situations:
I. The first proceeding is tainted by fraud or dishonesty;
II. Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or
III. When fairness dictates that the original result should not be binding in the new context.3
POSITIONS
11The parties agree that they were both involved in Tribunal file 18-011952, as noted earlier. The Respondent submits that during the first Application the Adjudicator found that, amongst other things, the Applicant sustained no impairments as a result of the subject accident. With this in mind, the Respondent takes the position that it is impossible for the Applicant to be successful in the adjudication of the substantive issues in the current Application without making a determination to the contrary of the Adjudicator’s decision in the first Application. This is because the tests for the benefits claimed in the current Application all require the Applicant to have sustained an impairment as a result of the accident.
12The Applicant submits that her entitlement to NEBs is a question of law that has never been before the Tribunal and has nothing to do with the findings of fact in the first appeal. In the current Application, the Applicant claims entitlement to NEBs for the period from January 5, 2017 to May 15, 2018. She submits that her claim for NEBs was denied pursuant to section 36(3), because she never submitted a disability certificate during that period. The Applicant submits that her claim for NEBs should proceed because she intends to rely on the “reasonable explanation” provision in section 34 of the Schedule to claim entitlement.
13The Applicant also submits that the first appeal found that only her psychological injuries were not as a result of the accident and that the Adjudicator never opined on the cause of her physical injuries. Lastly, the Applicant submits that fresh new evidence is available in the form of her multidisciplinary catastrophic impairment assessment reports, dated December 14, 2019. She submits that the specialists in those reports found that she sustained impairments as a result of the subject accident. To her, fairness would dictate that she be granted another hearing because the first decision was made on different footing, in that it was based primarily on the clinical notes and records of her family physician. Whereas now, with the inclusion of these reports, a hearing would be based on the opinions of qualified healthcare professionals who are looking to determine a cause of her injuries, rather than just treat them. Lastly, the Respondent conducted responding catastrophic impairment assessment reports and, according to the Applicant, this is an acknowledgement that the basis for her claim has shifted dramatically.
14In reply, the Respondent submits that the fresh new evidence discussed by the Applicant was available when she sought a Reconsideration of the first appeal but, to her detriment, she never put it before the Tribunal.
ANALYSIS
15I find that the Applicant is barred from proceeding with the current appeal because the Tribunal has determined that she sustained no impairments as a result of the accident. I find that the first appeal made a finding that the subject accident was not a necessary cause of all of the Applicant’s impairments. This is outlined in paragraph [10] of the decision in the first appeal, it reads:
10Based on the evidence, I find that, on a balance of probabilities, the accident was not a necessary cause of the impairments from which the applicant is suffering for the following reasons.
16To me, this finding of fact is not restricted to the Applicant’s psychological impairments. Paragraph [12] in the decision expressly states that “the Applicant submits that she suffered a back injury, a traumatic brain injury and psychological injuries as a result of the accident.”
The Four Preconditions Are Met
17The four preconditions for res judicata are satisfied.
18The parties are the same for both actions.
19The prior claim was within the jurisdiction of the Tribunal. It is true that the Applicant’s position that her entitlement to NEBs has never been an issue before the Tribunal. However, the Tribunal addressed the issue as to whether the Applicant sustained an impairment as a result of the subject accident. It determined that she did not. As noted above, the Applicant must have sustained an accident-related impairment in order to qualify for the benefits she claims entitlement to.
20The decision in the first appeal is based on the merits. The Adjudicator reviewed the Applicant’s medical record and submissions and determined that her injuries were not as a result of the subject accident.
21The decision in the first appeal is a final judgment. The Applicant filed for a reconsideration of the decision in the first appeal, however, she presented no evidence and made no submissions for the reconsideration and, eventually, withdrew her request. The time to seek reconsideration has now expired and she cannot file an appeal to a higher authority.
Res Judicata Shall Not Be Waived
22There are no allegations that the first proceeding is tainted with fraud or dishonesty. I only need to consider whether “fresh” or “new” evidence that was unavailable for the prior matter that would impeach the results of the first application.
23The Applicant provides no “fresh” or “new” evidence that was unavailable for the prior matter that would impeach the results of the first appeal. The catastrophic impairment assessment reports are not fresh or new evidence. As noted by the Respondent in reply submissions, the Applicant had the reports in her possession at the time she applied for reconsideration but chose not to proceed with her request rather than put it before the Tribunal. No other “fresh” or “new” evidence is available.
24Contrary to the Applicant’s submissions, the fact that the Respondent conducted its own set of catastrophic impairment assessments and reports does not automatically mean that the evidentiary basis has shifted dramatically. Rather, to me, it is an exercise in prudence considering that the Applicant commissioned her own catastrophic impairment assessment reports and that the Respondent has an ongoing obligation to continuously adjust the Applicant’s claim.
25If I am wrong and the Applicant’s catastrophic impairment assessment reports qualify as new evidence, I am not convinced that the new evidence would conclusively impeach the findings in the initial decision. The initial hearing decision included a review of CNRs from the Applicant’s family physician and the Canadian Mental Health Association, (“CMHA”), physician and psychologist reports from the insurer, and a discussion on the cause of the Applicant’s injuries. From that evidence, the Adjudicator determined that the Applicant’s injuries were not attributable to the subject accident. For example, the decision discussed the Applicant’s pre-existing frontal headaches, sinusitis, dizziness, and ongoing problems in the left ear. The Decision also noted that the Applicant visited her family physician 17 times between the accident and February 25, 2018, but never mentioned the accident. It discussed that the Applicant never mentioned the subject accident during a consultation for headaches and sinusitis in January 2017 and that during a visit on June 21, 2017 when she complained of back pain it was attributed to her pregnancy at the time. As well, the decision addressed the Applicant’s psychological symptoms and the adjudicator attributed them to a number of traumatic stresses as a result of experiencing the conflict in Syria.
26Fairness does not dictate that the original result should not be binding in the new context. The Applicant submitted a request for reconsideration on the prior hearing but chose not to proceed with it. This is remarkable considering the criteria noted in rule 18.2(d) of the LAT Common Rules of Practice and Procedure. There, it provides that one of the grounds for a reconsideration is that “there is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the outcome”. If the Applicant believes that the catastrophic impairment assessment reports would likely have affected the outcome of the initial decision, it was incumbent on her to submit the reports in a request for reconsideration pursuant to rule 18.2(d). It would be unfair to permit the Applicant to proceed with a new hearing on this evidence when she already had the opportunity to present it.
The Applicant’s claim for NEBs is without merit
27In addition to my analysis above, I find that the Applicant’s claim for NEBs is without merit or recourse. The Applicant wishes to advance her claim for NEBs based on the “reasonable excuse” provision in section 34 of the Schedule. To her, she has a reasonable excuse for not submitting an OCF-3, which would have initiated her claim for NEBs. However, the Tribunal has heard and rejected the reasonable excuse provision when it comes to the submission of a disability certificate.4 The Tribunal found that the requirement to submit a disability certificate to initiate a claim for specified benefits is not a time limit and thus, the “reasonable excuse” provision does not apply because it applies to time limits only.
CONCLUSION
28The principle of res judicata provides that the Applicant cannot relitigate a matter. The Tribunal previously found that she sustained no impairments as a result of the subject accident. Any further appeals for claims pertaining to the subject accident would require a finding that is contrary to the Adjudicator’s finding of fact in the first appeal. To date, the Applicant has provided no new evidence which would impeach the initial finding of fact.
29I dismiss the current appeal for the reasons above.
Released: February 23, 2022
__________________________
Brian Norris, Adjudicator
Footnotes
- See: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 and 16-003909 v. Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT)
- I recognize that the Applicant prefers the three-part test in Watts v. Canada (Revenue Agency), 2019 FC 1321, but she provides no reasons for her preference. I find little difference between the two tests and prefer to use the test more commonly applied by the Tribunal.
- Toronto (City) v. CUPE Local 79, 2003 SCC 63, para. 52, cited in 17-006816 v Cooperators, 2018 CanLII 110950
- Dino v. Travelers Insurance, 2021 CanLII 37851 (ON LAT) para 35 and K.A. v. Intact Insurance Company, 2020 CanLII 94779 (ONLAT)