Risikat Olaleye v. Aviva General Insurance, 2023 CanLII 67886

Licence Appeal Tribunal

Citation: Olaleye v. Aviva General Insurance, 2023 ONLAT 21-005113/AABS Licence Appeal Tribunal File Number: 21-005113/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:

Risikat Olaleye

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Jeton Memeti, Paralegal

For the Respondent: Jeffrey F. Pasternak, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Risikat Olaleye (the "applicant") was involved in a motor vehicle accident on May 18, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Aviva General Insurance (the "respondent") denied a treatment plan for a chronic pain assessment. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2This applicant filed a prior application (18-008653) with the Tribunal for the resolution of disputes relating to this accident. In a written hearing decision dated December 23, 2019 (R.O.O. v Aviva Insurance Canada, 2019 CanLII 130368 (ON LAT)), Adjudicator Maleki-Yazdi found that the applicant was entitled to an OCF-21 invoice for psychological services, plus interest and an award of 25 per cent of the value of this invoice. Adjudicator Maleki-Yazdi further found that the applicant was not entitled to two chiropractic services treatment plans, as they were not reasonable and necessary.

PRELIMINARY ISSUE IN DISPUTE

3The following preliminary issue is in dispute:

1. Is the applicant barred from proceeding with this application regarding the following benefit due to the doctrine of res judicata, as it is founded on her prior Tribunal application that was the subject of a decision released on December 23, 2019?

SUBSTANTIVE ISSUES IN DISPUTE

4The following substantive issues are in dispute:

1. Is the applicant entitled to $2,260.00 for a chronic pain assessment, recommended by All Health Medical Centre in a treatment plan/OCF-18 dated July 21, 2020?

2. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

3. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

5I find that the applicant is barred from proceeding with her application on the substantive issues before the Tribunal, as the doctrine of res judicata is applicable.

ANALYSIS: PRELIMINARY ISSUE

Res judicata

6The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. Four preconditions (see: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 and 16-003909 v. Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT)) must be established before an adjudicator can determine whether to apply res judicata:

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.

iv. The prior decision must have been a final judgment.

7As noted in Toronto (City) v. CUPE Local 79, 2003 SCC 63 at paragraph 52, res judicata can be waived in any of 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.

iii. When fairness dictates that the original result should not be binding in the new context.

Is the chronic pain assessment treatment plan res judicata?

8I find that the four preconditions for res judicata have been satisfied and that no situational factors apply that would cause me to waive this doctrine. The applicant is barred from proceeding with this application.

9In dispute is a treatment plan recommending a chronic pain assessment in the amount of $2,260.00 that was completed by Dr. Inese Robertus, family physician, and dated July 21, 2020. It lists a number of injuries and sequelae resulting from the accident, including injury of muscle and tendon at neck level; dislocation, sprain, and strain of joints and ligaments of lumbar spine and pelvis, and shoulder girdle; sprain and strain of thoracic spine, sacroiliac joint, and other and unspecified parts of knee; tension-type headache; other anxiety disorders; and nervousness. The goals of this plan are pain reduction, increase in strength, increased range of motion, and a return to the activities of normal living. Dr. Robertus also included a full page assessing the applicant's post-accident condition, where it was noted that she had been experiencing constant pain in her middle and lower back since the accident, along with frequent headaches. These conditions were noted to be limiting her ability to complete housekeeping activities, participate in social activities, and take care of her grandchildren.

10The applicant submits that this treatment plan is reasonable and necessary on the basis that her impairments have progressed to a chronic condition as a result of past treatment plans that have been denied. She relies on two Disability Certificates/OCF-3s dated May 30, 2017 and April 25, 2019; an s. 25 psychological assessment completed by Sabina Pillai, registered psychotherapist (pending at the time of this report), under the supervision of Dr. Tony Toneatto, psychologist, dated December 29, 2017; and the treatment plan in dispute.

11In response submissions, the respondent argues that the applicant should be barred from proceeding on the doctrine of res judicata and abuse of process, as this application is an attempt to have the Tribunal re-assess earlier evidence and come to a different result than that provided in the Tribunal decision released on December 23, 2019. It further asserts that no additional or updated productions have been provided with the current written submissions for this hearing, that the goals of the chronic pain treatment plan in dispute are the same as the goals of two chiropractic treatment plans denied in the earlier Tribunal decision, and that the clinical notes and records ("CNRs") of the applicant's family physician, Dr. Olaniyi Ajisafe, do not indicate any progression in symptoms that would constitute new information that would warrant waiving res judicata.

12As the applicant did not file reply submissions, she has presented no argument or evidence on the res judicata issue raised by the respondent.

13I agree with the respondent, for the following reasons.

14First, I am satisfied that the four preconditions have been met to warrant the application of res judicata. The parties are the same as in the prior Tribunal proceeding, and this application involves the same subject accident. This claim is clearly within the jurisdiction of this Tribunal. The prior adjudication was based on the merits of the application. And the decision released on December 23, 2019 was a final judgment (that was, in addition, not appealed to the Tribunal via a request for reconsideration).

15Second, I am further satisfied that no situations exist here that would cause me to consider waiving res judicata. There are no indications of fraud or dishonesty. No fresh, new evidence has been submitted with this application that was not part of the earlier Tribunal hearing. The OCF-3s and the psychological assessment report were part of the applicant's evidence in the original hearing. And I see no reason why the original Tribunal decision should not be binding in here, as the applicant has not presented any evidence supporting procedural unfairness.

16Third, the new treatment plan alone is not enough to cause me to waive res judicata. While the chronic pain assessment treatment plan itself is new, and chronic pain is a condition that develops over what can be a considerable period of time, the applicant has adduced no new objective medical evidence to support that the chronic pain assessment should be regarded as a new issue. Aside from the plan itself, she relies on the same evidence submitted for the original hearing. The goals of this plan are also the same as those presented in the two plans denied in the earlier Tribunal decision, for example.

17In addition, the CNRs of Dr. Ajisafe from June 2019 to March 2022 provided by the respondent in submissions do not support that the applicant's accident-related injuries and sequelae progressed to chronic pain between the release of the original Tribunal decision on December 23, 2019 and the date that this treatment plan was completed on July 21, 2020. I can find nothing in these CNRs that would warrant this chronic pain assessment being heard as a new matter before the Tribunal. None of the applicant's appointments with Dr. Ajisafe during this period of time show any complaints relating to the accident or suspicions of ongoing pain that would warrant a chronic pain assessment.

18Due to the aforementioned reasons, I conclude that no new medical evidence has been submitted that would cause me to consider waiving res judicata.

19Lastly, I am persuaded by the respondent's reference to Yevdokymova v. Economical Insurance, 2022 CanLII 59501 (ON LAT). Although I am not bound by previous decisions of this Tribunal, I find Vice-Chair Flude's reasoning applicable to the matter before me. Vice-Chair Flude concluded that the integrity of the Tribunal's adjudicative process would be significantly undermined if he were to arrive at different findings of fact based on largely identical evidence, essentially the same situation that is before me.

20I concur. If I were to hear this issue, I would be assessing the same medical evidence that was before Adjudicator Maleki-Yazdi, who found that two prior treatment plans with the same goals as the treatment plan before me were not reasonable and necessary. This, to me, reinforces both the opinion of Vice-Chair Flude as well as the position that res judicata should apply here, because no evidence has been submitted to support that this treatment plan is a new issue reflecting a material change in the condition of the applicant.

21Accordingly, I find that the doctrine of res judicata is relevant to this application, and therefore bar the application from proceeding.

ORDER

22For the reasons set out above, I find that the doctrine of res judicata applies as a result of the Tribunal's original decision released on December 23, 2019. The applicant is barred from proceeding with the substantive issues. Her appeal is dismissed.