Reynolds-Gosling v. Aviva General Insurance, 2023 CanLII 67892

Citation: Reynolds-Gosling v. Aviva General Insurance, 2023 ONLAT 22-006840/AABS-PI

Licence Appeal Tribunal File Number: 22-006840/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:

Jennifer Reynolds-Gosling

Applicant

and

Aviva General Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Frank Calcagni, Counsel

For the Respondent:

Melanie Sousa, Counsel

Heard by way of written submissions

OVERVIEW

1Jennifer Reynolds-Gosling, the applicant, was involved in an automobile accident on August 20, 2015 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 based on the doctrine of res judicata.

RESULT

3The applicant is barred from proceeding with her application before the Tribunal.

ANALYSIS

Background

4The applicant was involved in a motor vehicle accident on August 20, 2015. On July 17, 2019, she submitted a Treatment and Assessment Plan (“OCF-18”) dated May 27, 2019 for a chronic pain treatment program at the Michael G. DeGroote Pain Clinic. The OCF-18 was denied, and the applicant filed an application with the Tribunal to dispute the denial. In its decision reported at 2021 CanLII 65243 (ON LAT), the Tribunal found that the OCF-18 was not reasonable or necessary.

5On May 2, 2022, the applicant submitted an OCF-18 dated April 26, 2022 for a chronic pain treatment program at the Michael G. DeGroote Pain Clinic. The OCF-18 was denied by the respondent, and the applicant filed an application with the Tribunal to dispute the denial. The matter was set down for a hybrid hearing. The respondent filed a notice of motion seeking an order to bar the applicant from proceeding based on the principle of res judicata.

Parties’ positions

6The respondent submits that the applicant’s claim for the chronic pain treatment program is barred because the claim has already been adjudicated and decided.

7The applicant’s submissions do not address the doctrine of res judicata.

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 satisfied

10In 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 treatment plan was not reasonable or necessary. The first decision was a final decision because the applicant did not seek a reconsideration and nor did she appeal the decision.

Is there new evidence that would conclusively impeach the original results, therefore opening the doctrine of res judicata to being waived?

11Any application to change a finding must be based on “fresh” new evidence that was not available at the arbitration or appeal, that would conclusively impeach the original results, or that there was an error in the order. The applicant did not provide cogent submissions as to why res judicata should be waived based on new evidence. There were no reasons put before me to why this new evidence was not available to be presented to the Tribunal in the prior proceeding.

Interdisciplinary Initial Assessment-Addendum

12In her submissions, the applicant admits that the Tribunal’s decision was sent to the Michael G. DeGroote Pain Clinic (“Clinic”) for review and response. She states that, “their opinion was that they understood what the said Adjudicator wished to convey, and they felt it was appropriate and they thereafter completed a new treatment plan reflecting the suggestions made in obiter by the said Adjudicator.”

13I have reviewed the Interdisciplinary Initial Assessment-Addendum prepared by John Secen, occupational therapist, at the Clinic. He stated that:

Our clinic was provided a copy of the Citation and was requested by Mr. Calcagni to resubmit another OCF-18 treatment plan as our original treatment plan did not have all of the injuries listed. From the Problem List of our Interdisciplinary Initial Assessment on March 20,2019, the list of injuries in the new treatment plan has been updated to include mid-back pain (M54.6), left and right foot pain (S99), and headaches (R41) on top of the injuries already listed.

14I find that the fresh evidence does not come to any new conclusions than the evidence that was put before the Tribunal in the prior proceeding, nor does it show a material change in circumstances. Moreover, this evidence is uncompelling and does not conclusively impeach the Tribunal’s previous findings. In my view, this evidence is not new and was previously available at the time when the first OCF-18 was submitted. Her headaches, midback pain, left and right foot pain were documented in the first Interdisciplinary Initial Assessment report dated May 19, 2019. It appears that Mr. Secen failed to include these conditions in the OCF-18 dated July 17, 2019.

15Upon receiving the Tribunal’s decision, the applicant has attempted to remedy this by submitting a new OCF-18 that includes all of the conditions that are noted as missing. In my view, this information could have been obtained prior to the hearing or even for the purposes of a reconsideration. The applicant has not explained why this information was not made available at the time of the hearing. I do not find that this warrants waiving the doctrine of res judicata.

Clinical notes and records from Dr. Victoria Pinto (“CNRs”)

16The applicant has also provided CNRs from Dr. Victoria Pinto, family physician, from 2018 to 2019. These CNRs do not assist the Tribunal in determining whether the doctrine of res judicata should be waived.

17However, the respondent provided the CNRs from May 4, 2020 to March 14, 2023. For the sake of completeness, I have reviewed these CNRs. The CNRs from May 4, 2020 to February 18, 2021 are not new nor unavailable at the time of the hearing. The applicant has not provided an explanation why these CNRs were not provided to the Tribunal in the prior proceeding. Moreover, this evidence is uncompelling and does not conclusively impeach the Tribunal’s previous findings.

18The CNRs from May 19, 2021 and onwards were not available at the time of the hearing. However, the applicant did not direct the Tribunal in her submissions to specific references in the CNRs in support of her case as to why res judicata should be waived. I have reviewed the CNRs and note that there are no references made to the subject accident until March 14, 2023 where Dr. Pinto noted that the applicant needs a letter from her regarding her arms and shoulder. Under “Assessment and Plan”, Dr. Pinto states “Note written to give to lawyer explaining that since patient was not seen at our clinic at the time of the accident, current health status cannot necessarily be tied to the accident.” There is nothing in the CNRs that suggests that the applicant’s condition worsened since the hearing. As such, I find that this evidence does not impeach the Tribunal’s findings. These CNRs do not warrant waiving the doctrine of res judicata.

19Moreover, there is no evidence that the first proceeding was tainted with fraud or dishonesty. Moreover, fairness does not dictate that the original result should not be binding in the new context. It would be unfair to allow her to proceed with a new hearing when a finding has already been made.

COSTS

20The applicant requests costs be awarded against the respondent for an abuse of process. I 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 the applicant. Even if I am wrong in this regard, I find that the respondent’s decision to file this application is not sufficient to award costs. The test to find bad faith and unreasonable, frivolous, vexatious behavior is very high. I find that the respondent’s behaviour has not met this threshold.

CONCLUSION AND ORDER

21For the reasons set out above, I find the doctrine of res judicata applies and that there are no circumstances that warrant setting it aside.

22The applicant is barred from proceeding with her substantive issues. The applicant’s request for costs is dismissed. The application is dismissed.