Said v. Northbridge Personal Insurance Corporation, 2023 CanLII 72638

Citation: Said v. Northbridge Personal Insurance Corporation, 2023 ONLAT 22-011448/AABS-PI

Licence Appeal Tribunal File Number: 22-011448/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:

Roshan Said

Applicant

and

Northbridge Personal Insurance Corporation

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

John Adesina, Paralegal

For the Respondent:

Jennifer McGlashan, Counsel

Heard by way written submissions

REASONS FOR DECISION [AND ORDER]

OVERVIEW

1Roshan Said, the applicant, was involved in an automobile accident on July 17, 2019 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, Northbridge Personal Insurance Corporation (“Northbridge”), 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 to a hearing by the doctrine of res judicata?

RESULT

3The applicant is barred from proceeding with his application.

ANALYSIS

Background

4The applicant filed an application (20-001503/AABS) to determine whether he was entitled to income replacement benefits (‘IRB’) as well as payment for the completion of an IRB accounting report. The matter proceeded before the Tribunal, which in its decision reported at 2020 CanLII 122073 (ON LAT), found that the applicant was not entitled to IRBs for the period of January 14, 2020 to date and ongoing. Moreover, he was not entitled to payment for the November 9, 2019 accounting report. The application was dismissed by the Tribunal. The applicant did not seek a reconsideration of the hearing decision and nor did he pursue an appeal.

5The applicant subsequently filed the present application (22-011448/AABS) with the Tribunal seeking entitlement to the IRB from August 3, 2019 to date and ongoing, award and interest. This application relates to the same accident.

6The respondent raised a preliminary issue seeking an order to bar the applicant from proceeding based on the principle of res judicata.

Parties’ positions

7The respondent submits that the doctrine of res judicata applies because all of the criteria is met. The parties are the same, it is the same accident, the prior application was within the jurisdiction of the Tribunal and the decision was a final decision.

8The applicant submits that the prior claim was not in the jurisdiction of the Tribunal because the Tribunal proceeded on an issue that was neither in dispute nor properly before it. The decision was not based on the merits of the case because it is not based on the relevant evidence and facts. The decision was not final or conclusive because the quantum of the applicant’s initial and ongoing entitlement to the IRB as well as initial entitlement from August 4, 2019 was not answered.

The law

9The 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.

10As noted in Toronto (City) v. CUPE Local 79, [2003 SCC 63](https://www.canlii.org/en/ca/scc