Licence Appeal Tribunal File Number: 21-009091/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:
Clement Amadiegwu
Applicant
and
Aviva General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Clement Amadiegwu, Applicant
Sam Elbassiouni, Paralegal
For the Respondent:
Cezary Paluch, Counsel
Heard by way of written submissions
REASONS FOR DECISION [AND ORDER]
OVERVIEW
1Clement Amadiegwu, the applicant, was involved in an automobile accident on September 11, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent, Aviva General Insurance Company (“Aviva”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding with this appeal because the Tribunal has already determined that the subject accident did not cause any of the Applicant’s impairments. The Tribunal must determine whether the doctrine of res judicata applies to all of the issues raised in the second application.
RESULT
3The applicant is barred from proceeding with his application before the Tribunal.
ANALYSIS
Background
4The applicant filed an application (19-005824/AABS) to determine whether he was entitled to income replacement benefits (‘IRB’). The matter proceeded before the Tribunal, which in its decision reported at 2021 CanLII 139038 (ON LAT), found that the applicant’s impairments did not demonstrate that his physical injuries were as a result of the accident. The Tribunal also found that his psychological injuries did not preclude him from performing the essential tasks of his job or any job that for which he is reasonably suited for.
5The applicant filed a reconsideration request with the Tribunal. In its decision reported at 2022 CanLII 38861 (ON LAT), the Tribunal did not find any error that would warrant granting reconsideration and therefore dismissed the request. The applicant appealed the original decision and the reconsideration decision to the Divisional Court. The appeal was dismissed and is reported at 2023 ONSC 1256.
6The applicant subsequently filed the present application (21-009091/AABS) with the Tribunal requesting physiotherapy services in the amount of $3,959.95, an assessment of attendant care needs (Form 1) in the amount of $2,686.00, a post-104 IRB assessment in the amount of $28,676.00, award and interest. This application relates to the same accident.
7The respondent filed a notice of motion seeking an order to bar the applicant from proceeding based on the principle of res judicata.
Parties’ positions
8The respondent submits that the Tribunal determined that the accident did not cause or exacerbate the applicant’s physical impairments and as such, he is barred by res judicata from bringing the current application for all further statutory accident benefits, including specified benefits.
9The applicant submitted that the characterization of his injuries is a fluid issue and the current issues in dispute were not before the Tribunal or the Divisional Court.
Minor Injury Guideline (“MIG”)
10The respondent submits that the MIG is not an issue in dispute and has been incorrectly included in the Case Conference Report and Order dated February 17, 2020. The request to amend the order was not filed by the applicant despite multiple reminders. The applicant’s submissions state that the MIG is an issue in dispute, but then also mention that he was removed from the MIG in paragraph 13 of his submissions.
11I have reviewed the letter dated November 14, 2018 from the respondent and note that the applicant was removed from the MIG due to his psychological impairments. As such, I find that the MIG is not an issue in dispute and will not be considered as part of my analysis of the doctrine of res judicata.
The law
12The 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 judgement.
13As 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 satisfied
14In 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 application was based on the merits. The Tribunal reviewed the submissions and evidence and found that the accident did not cause his physical injuries and nor did he suffer psychological impairments that caused a substantial inability for the applicant to perform the essential tasks of his pre-accident employment or any employment for which he is reasonably suited. The first decision was a final decision because the Divisional Court upheld it and he did not seek leave to appeal the Divisional Court’s decision.
15The applicant has failed to make any submissions regarding why the doctrine of res judicata should not apply. There is no evidence that the first proceeding was tainted with fraud or dishonesty. The applicant has not provided new evidence that was previously unavailable that would conclusively impeach the original results. Moreover, fairness does not dictate that the original result should not be binding in the new context. It would be unfair to allow him to proceed with a new hearing when a finding has already been made.
16The treatment plans for the assessment of attendant care needs (Form 1) and physiotherapy are not reasonable and necessary because the Tribunal has already made a determination that the applicant did not sustain physical impairments as a result of the accident. Furthermore, the Tribunal found that the applicant did not suffer a substantial inability to perform the essential tasks of his employment within 104 weeks of the accident. The complete inability test for a post-104-week IRB is stricter than the substantial inability test. Therefore, if he could not satisfy the substantial inability test, then it follows that he would not satisfy the post 104-week complete inability test.
17The applicant is relying on M.K. and Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT), and H.L. and Co-Operators General Insurance Company, 2017 CanLII 81577 (ON LAT) in support of his case. The applicant submits that in these cases, the Tribunal found that the issues in dispute in the applications were not res judicata as the specific issues in dispute had not been previously adjudicated. I am not persuaded by the applicant’s position for the reasons set out above. Although not binding, I am persuaded by the Tribunal’s decision in Alazab v. Aviva General Insurance, 2022 CanLII 14944 (ONLAT), which is quite similar to the facts before me. As the Tribunal previously determined that the applicant sustained no physical impairments as a result of the subject accident, he cannot be successful in the current appeal without a determination that is contrary to the previous determination.
Costs
18The applicant is requesting costs in the amount of $1,000.00. He alleges that the respondent brought a meritless motion when it already renounced its MIG position several years ago and paid approximately $33,000.00 in medical and rehabilitation benefits. The applicant is relying on a Statement of Benefits.
19I find that the applicant has not met the test set out in Rule 19. In the absence of reasons and particulars, I am unable to award costs to him. In any event, I find the actions of the respondent is not sufficient to award costs. The test to find bad faith and unreasonable, frivolous, vexatious behaviour is very high. There is no evidence that the respondent’s behaviour has met this threshold.
CONCLUSION AND ORDER
20For the reasons set out above, I find the doctrine of res judicata applies and that there are no circumstances that warrant setting it aside.
21The applicant is barred from proceeding with his substantive issues. The applicant’s request for costs is dismissed. The application is dismissed.
Released: June 5, 2023
Tavlin Kaur
Adjudicator