Licence Appeal Tribunal File Number: 23-000325/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:
Wahida Ishak
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Ramandeep Pandher, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Wadiha Ishak, the applicant, was involved in an accident on July 7, 2018 and sought benefits to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance (“Intact”), and applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing due to the doctrine of res judicata?
RESULT
3The applicant is not barred by the doctrine of res judicata.
ANALYSIS
4The applicant filed an application with the Tribunal on February 18, 2021 (File No. 21-002029/AABS), which the parties disputed whether the applicant should remain in the Minor Injury Guideline (“MIG”) and seven treatment and assessment plans. In its decision reported at 2023 CanLII 19906 (ON LAT), the Tribunal determined that the applicant’s injuries were within the MIG and that the treatment plans were not reasonable or necessary as the MIG limit had been exhausted. The Tribunal dismissed the applicant’s reconsideration request (see 2023 CanLII 50609 (ON LAT)). Neither of the Tribunal’s decisions were appealed to the Divisional Court.
5On January 4, 2023, the applicant filed a second application (File No. 23-000325/AABS) with the Tribunal. The second application was filed before any of the decisions for the first application were released. The second application seeks a determination that the applicant sustained a catastrophic impairment as a result of the accident, and payment for catastrophic determination assessments. The applicant relies on a catastrophic report from Dr. Shahzad Shahmalak, psychiatrist, dated March 15, 2023 in support of her case.
Parties’ positions
6The respondent submits that the four pre-conditions of the doctrine of res judicata apply. It is the respondent’s position that applying for the catastrophic impairment designation is simply a way to have the MIG reheard where all avenues for the appeal have already been exhausted by the applicant on the first application before the Tribunal. The respondent asserts that the Tribunal cannot disregard the finding of the MIG to determine if the applicant is catastrophically impaired as it would result in the Tribunal having to re-weigh evidence that has already been weighed once by the Tribunal. Furthermore, there is no new evidence that would impeach the results as Dr. Shahmalak’s report is simply a reiteration of all the other reports the applicant attempted to rely upon in the first instance, which the Tribunal has already given ample consideration to and adjudicated upon.
7The applicant submits that the invocation of the doctrine of res judicata should be deemed inappropriate in the present case for two primary reasons. First, the applicant asserts that the issues addressed in the two applications under consideration are fundamentally distinct. Second, MIG determinations inherently possess characteristics of fluidity and evolution. While certain diagnoses may have been previously addressed, Dr. Shahmalak employed entirely distinct testing methodologies to assess the applicant's functional capacity after a four-year period. The results indicated that the applicant’s limitations met the criteria for classification as “marked class” in three domains and exhibited moderate impairment in the fourth domain. He determined that her whole person impairment stands at 20%.
The Law
8The 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. See: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 and 16-003909 v. Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT). 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 judgment.
9As noted in Toronto (City) v. CUPE Local 79, 2003 SCC 63 at para 52, res 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.
The four preconditions for res judicata are not satisfied.
10In my view, the four preconditions for res judicata are not satisfied. The decision in the first application addressed whether the applicant’s impairments were within the MIG and entitlement to various treatment plans. The current application is in relation to the catastrophic designation and a treatment plan for catastrophic determination assessments. The issues in the two applications are different. The Tribunal has not made a determination on the issues set out in the second application.
11Moreover, a finding that an individual’s impairments fall within the MIG does not indefinitely preclude them from applying for the catastrophic designation. An applicant’s condition may deteriorate over time and as such, the applicant may need to be reassessed. Thus, the applicant cannot relitigate her entitlement to the earlier benefits in dispute, or the question of whether her impairments at that time were minor, but it remains open to her to bring forward evidence of recent deterioration for the purposes of a catastrophic impairment determination.
12I am not persuaded by the jurisprudence that the respondent relies upon because it is distinguishable. In DT vs. Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ON LAT), the Tribunal found that the issues in the second application had already been decided in the previous proceeding. Notably, the issues between the two applications relating to DT dealt with the same substantive benefits. In Olaleye v. Aviva General Insurance, 2023 CanLII 67886 (ON LAT), the Tribunal found that the OCF-3s and the psychological assessment report were part of the applicant’s evidence in the original hearing.
13In Yevdokymova v. Economical Insurance, 2022 CanLII 59501 (ON LAT), the Tribunal barred the applicant from proceeding with her claim for the catastrophic impairment designation on the basis of abuse of process because of the factual findings in the first proceeding, namely that the applicant was an “unreliable witness.” The Tribunal found that the integrity of its adjudicative process would be significantly undermined if it were to arrive at different findings of fact on largely identical evidence. The evidence in this case is at least slightly different as between the two applications. In Alazab v. Aviva General Insurance, 2022 CanLII 14944 (ON LAT), the Tribunal previously determined that the applicant’s injuries were not a result of the subject accident.
14I do not find these cases applicable to the facts before me. For the reasons noted above, the doctrine of res judicata does not apply.
ORDER
15The preliminary issue motion is dismissed. The matter will proceed to the substantive issue hearing scheduled for April 4, 2024.
Released: November 10, 2023
___________________________
Tavlin Kaur
Adjudicator