Dauti v. Aviva General Insurance, 2023 CanLII 2695

Citation: Dauti v. Aviva General Insurance, 2023 ONLAT 22-000135/AABS-PI

Licence Appeal Tribunal File Number: 22-000135/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:

Kustrim Dauti

Applicant

and

Aviva General Insurance

Respondent

PRELIMINARY ISSUE DECISION [ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Kustrim Dauti, Applicant

Matthew Hyland, Counsel

For the Respondent:

Jennifer Walters, Adjuster

Kevin Griffiths, Counsel

Heard by way of written submissions

REASONS FOR DECISION [AND ORDER]

OVERVIEW

1The applicant was involved in an automobile accident on October 10, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (‘Schedule’)¹.The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

BACKGROUND

2The applicant filed an application (18-011646/AABS) to determine whether he was entitled to income replacement benefits (‘IRB’). The matter proceeded before Vice-Chair Farlam, who found that the amount of the IRB the applicant was entitled to was nil. The applicant did not request a reconsideration of Vice-Chair Farlam’s hearing decision and nor did he pursue an appeal.

3On January 6, 2022, the applicant filed a second application (22-000135/AABS) with the Tribunal. The second application included income replacement benefits. A case conference took place before Vice-Chair Todd on November 1, 2022, who set the matter down for a preliminary issue hearing.

ISSUE IN DISPUTE

4The preliminary issue to be decided is:

1. Is the applicant barred from proceeding with his appeal regarding the following benefits because the claims in dispute have already been adjudicated (see K.D. v. Aviva Insurance Company, 2020 CanLII 27383 (ON LAT) March 31, 2020), meaning that the doctrine of res judicata applies?

PARTIES’ POSITIONS

5The respondent submitted that the only claim in dispute is the entitlement to IRB at $185.00 per week from the 104-week mark (plus interest and a special award). The amount which the applicant is entitled to was finally determined in a prior hearing and cannot be relitigated pursuant to the doctrine of res judicata.

6The applicant submitted that he is entitled to a weekly IRB at the minimum weekly IRB of $185.00 per week in accordance with section 7(2)(1) ii from the 104-week mark to date and ongoing. The question of entitlement to benefits past 104 weeks and the associated quantum of same has never been properly considered and adjudicated.

ANALYSIS

Is the IRB issue res judicata?

7The 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.² 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.

8Res 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

9I find that the preliminary issue of whether the applicant is entitled to the IRB for the period of October 17, 2017 to date and ongoing was determined by the Tribunal’s first decision and is res judicata for the following reasons.

10The issue before Vice-Chair Farlam was the quantum of IRB from October 17, 2017 to date and ongoing. This time period includes the 104-week mark and the post 104-week mark. I do not agree with the applicant’s assertion that the question of entitlement to benefits past the 104-week mark and the associated quantum has never been properly considered or adjudicated. I find that this has already been decided by Vice-Chair Farlam.

11In my view, the four preconditions for res judicata are satisfied. The parties are the same in both proceedings. The prior claim was within the jurisdiction of the Tribunal. The decision in the first appeal is based on the merits. Vice-Chair Farlam reviewed the submissions and evidence. She found that that the amount the applicant was entitled to was nil. The first decision was a final judgment because it finally determined that the applicant was entitled to nil. The applicant did not file a reconsideration request and nor did he appeal the decision.

12In my view, the applicant is raising the same issue again. As such, the principles of res judicata apply and I am exercising my discretion to apply res judicata to prevent the applicant from relitigating the same issue.

13Moreover, the applicant has not proffered any evidence that would cause me to waive res judicata.

CONCLUSION AND ORDER

14For the reasons set out above, I find that the preliminary issue of whether the applicant is entitled to the IRB was determined by the Tribunal’s first decision and is res judicata. The applicant is barred from proceed with his substantive issues. His appeal is dismissed.

Released: January 19, 2023

Tavlin Kaur

Adjudicator

CanLII 110950 para 5.

Footnotes

1. 1O. Reg 34/10 as amended.
2. 2Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para 18 cited in 16-003909 v. Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT) at paras14, 15.
3. 3Toronto (City) v. CUPE Local 79, 2003 SCC 63, para. 52, cited in 17-006816 v Cooperators, 2018