Licence Appeal Tribunal File Number: ONLAT 22-007395/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:
Xin Yi Wang
Applicant
and
Co-Operators General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
David Raposo, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Xin Yi Wang (“the applicant”) was involved in an automobile accident on September 1, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied certain benefits by Co-Operators General Insurance Company (“the respondent”) 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 application because the Tribunal made a previous determination on the reliability of the applicant’s evidence in Tribunal file 20-009692/AABS?
RESULT
3The applicant is barred from proceeding forward and as such, the application is dismissed.
BACKGROUND
Previous Tribunal Decision released on April 11, 2022
4The applicant previously filed a Tribunal application dated August 25, 2020, for the same accident, and on September 8, 2020 added two more issues to the application. In total, the previous application pertained to the costs of s.25 CAT assessments, the cost of an attendant care assessment, and a treatment and assessment plan (“OCF-18”) for chiropractic services. The Tribunal assigned file number 20-009692/AABS to the application.
5In its decision reported at 2022 CanLII 30682 (ON LAT), the Tribunal dismissed the application in its entirety. The Tribunal noted that although the applicant did not have to prove she was CAT impaired, she did have to establish that it was reasonable and necessary to warrant further investigation that she may be CAT based on the medical evidence. The Tribunal concluded that the applicant’s evidence fell significantly short of establishing that her accident-related impairments warrant further investigation that she may possibly be CAT impaired. Further, the Tribunal noted that the applicant was claiming mental and behavioral impairments under criterion 8 of the Schedule, and she would need to show in at least three of the four domains that she has class 4 (marked) impairment as defined in the AMA Guides, i.e., impairments that “significantly impede any useful functioning.” At paragraph 31, the Tribunal determined that the applicant failed to establish major depressive disorder and more importantly, failed to point to even moderate levels of functional impairment from a physical or mental perspective. Further, the Tribunal concluded that in terms of physical injuries, the evidence showed at most relatively limited, if any, ongoing issues related to the accident.
6The Tribunal reviewed the evidence presented by the parties and highlighted the inconsistencies with the evidence at paragraphs 15-30. In particular, the Tribunal noted that the applicant had been involved in a previous accident on July 26, 2016 and that she complained of similar impairments pre-accident that she did post-accident. The Tribunal concluded that the applicant failed to provide a persuasive opinion that fully considered her pre-accident issues, yet ties her ongoing issues to the subject accident. The Tribunal further determined that the OCF-18s for an attendant care assessment (“ACB assessment”) and chiropractic services were not reasonable and necessary because it found the applicant’s evidence could not support the ACB assessment. With respect to the chiropractic services, the Tribunal determined that as the applicant was not reliable about her true complaints and the lack of a tie-in to the accident, that the OCF-18 was not reasonable or necessary.
7This decision was neither reconsidered nor appealed to the Divisional Court. As a result, it is a final decision.
Current Application
8Following the previous decision of the Tribunal, the applicant filed the current application, which pertains to a CAT impairment designation and an OCF-18 for physiotherapy services.
9The Case Conference Report and Order of Adjudicator Ahmad dated April 13, 2023 (“Tribunal’s Order”), does not state under which criterion the applicant is applying for a CAT designation. The applicant previously filed an Application for Determination of Catastrophic Impairment (“OCF-19”) in Tribunal file number 20-009692/AABS. This OCF-19, dated November 7, 2019, was submitted by Dr. Nancy Lin, staff psychiatrist, and determined that the applicant was CAT under criterion 8. As the applicant has not provided a further OCF-19, I find that the applicant is still claiming a CAT designation under criterion 8 of the Schedule.
Preliminary Issue- Late disclosure of the Clinical Notes and Records of Dr. Lin
10The applicant tendered the clinical notes and records of Dr. Lin, dated April 13, 2022 and October 11, 2022 (“Dr. Lin’s records”) as evidence for this hearing.
11The respondent submits that the applicant is in breach of the Tribunal’s Order. The applicant was ordered by the Tribunal to submit any records she may rely on with respect to the preliminary hearing no later than 7 days following the case conference. The applicant did not submit Dr. Lin’s records until May 16, 2023. The applicant did not address the issue of late disclosure of Dr. Lin’s records in her submissions. The respondent did have the opportunity to address Dr. Lin’s records in its reply submissions.
12Tribunal Rule 9.4 of the Tribunal’s Common Rules of Practice and Procedure (“the Rules”) sets out that a party that fails to comply with any Rules or Orders regarding disclosure or inspection of documents or things, or lists of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal. The Tribunal’s Order was clear that the deadline for exchange of documents was 7 days following the case conference, which was made on consent by both parties.
13Despite the clear breach of the Tribunal’s Order, I am permitting Dr. Lin’s records to be admitted as evidence for this hearing, as the respondent has failed to establish any prejudice brought as a result of the applicant’s breach of the Tribunal’s Order. Further, the respondent had the opportunity to submit reply submissions, which addressed the records of Dr. Lin. Additionally, the records of Dr. Lin are relevant to determine whether there is any new evidence to support that the applicant is CAT after the Tribunal’s previous decision on April 11, 2022. However, I would caution the applicant against any future breach of Tribunal Orders. Rule 9.4 is discretionary, and when parties fail to abide by production orders or deadlines, they risk the potential of exclusion by the hearing adjudicator. Deadlines are intended to promote procedural fairness and to maintain hearing efficiency pursuant to Rule 3.1.
ANALYSIS
Parties’ positions
14The respondent submits that the applicant is barred from proceeding with her current application as the Tribunal has made a previous determination on the reliability of the applicant’s evidence, and the Tribunal cannot now arrive at different findings of fact based on largely identical evidence without undermining the adjudicative process. The respondent submits that the current application with the Tribunal is an abuse of process.
15The applicant submits that the previous decision proceeded by written submissions and that an in-person testimony and evidence has never been provided to the Tribunal. The applicant further submits that the issues in the previous LAT application are not being addressed again or relitigated, as the current LAT application pertains to a CAT designation and an OCF-18 for physiotherapy services. The applicant further submits that there is new evidence with respect to her application. She further submits that it would be an abuse of process to bar the applicant from bringing this application with further issues just because a previous decision was rendered.
Is the applicant barred with respect to proceeding with a CAT designation?
16I find that the applicant is barred from proceeding with a CAT designation under criterion 8 of the Schedule because allowing it to proceed is an abuse of process, for the reasons that follow.
17In Yevdokymova v. Economical Insurance, 2022 CanLII 59501, the Tribunal had to determine whether the applicant was barred from disputing a CAT designation when a previous Tribunal decision found that the applicant was an unreliable witness and was not entitled to the non-earner benefits. The Tribunal determined that the integrity of the Tribunal's adjudicative process would be significantly undermined if it were to arrive at different findings of fact on largely identical evidence, and as such, the applicant was prohibited from proceeding with the current claim.
18In reaching this decision, the Tribunal referred to the leading case on the common law doctrines of res judicata, collateral attack, and abuse of process, which is Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (“CUPE Local 79”). In particular, at paragraph 37, Justice Arbour stated:
In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]
Justice Arbour also at paragraph 51 of her decision noted:
Rather than focus on the motive of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process.
19Together with Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, C.U.P.E. Local 79 rounds out the doctrine of res judicata and when it may be waived to permit the subsequent litigation to proceed.
20The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. Four preconditions 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.
21As CUPE Local 79 states at para. 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.
22The authority to prevent abuse of its processes is specifically granted to the Tribunal by s.23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
23I agree with the parties that the doctrine of res judicata is not applicable as the issues in dispute are different, but the respondent’s overall argument rests on the principle of abuse of process. In CUPE Local 79, the Supreme Court of Canada made clear that the doctrine of abuse of process can apply to preclude litigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would none‑the‑less violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice. In applying Justice Arbour’s analysis, I find that the integrity of the adjudicative process would be undermined if this application about a CAT designation under criterion 8 were to proceed.
24The Tribunal has already determined, based on largely identical evidence, that the applicant does not have even moderate levels of functional impairment from a physical or mental perspective. The Tribunal further noted that there were many glaring inconsistences in the applicant’s self reporting and other evidence which weakened all the medical opinions in support of her claim. As stated above, a CAT determination under criterion 8 requires the applicant to demonstrate at least three class 4 (marked) impairments, which is a worse category than a moderate impairment.
25While the Tribunal did not make a determination with respect to whether the applicant was CAT, it did determine that based on the evidence presented then that the applicant failed to demonstrate that any further investigation of whether she was CAT was reasonable and necessary, as she did not suffer from psychological impairments or physical impairments that would point to even moderate levels of functional impairment. Accordingly, I disagree with the applicant that the prior Tribunal decision is not relevant to the outcome of the current application. It is highly relevant.
26Turning to the updated medical records of Dr. Lin, as submitted by the applicant, I find that she has failed to provide new evidence that demonstrates her health psychologically and physically have changed as a result of this accident and therefore would have any impact on the previous Tribunal’s decision’s findings. The Updated OHIP Summary lists a number of visits from January 21, 2020 to March 14, 2023; however, it does not state whether these visits are due to the injuries sustained from the accident. While the records of Dr. Lin demonstrate that she has a diagnosis of major depressive disorder, chronic; and chronic pain they do not state which accident this diagnosis is applicable. Further, while Dr. Lin noted that the applicant had passive suicidal ideation, she did not link this to the subject accident. Moreover, these records do not speak to any functional limitations as a result of these diagnosis. By comparison, the Tribunal’s previous decision noted that the applicant was diagnosed with major depressive disorder, chronic; and chronic pain by Dr. Lin but found this diagnosis unpersuasive. As such, the updated records of Dr. Lin do not demonstrate that the applicant has a new diagnosis that was not already considered by the Tribunal’s previous decision, nor do they demonstrate that the applicant may be CAT impaired, against the Tribunal’s previous decision. Further, the applicant has not undergone any further s.25 assessments since the Tribunal’s previous decision, and as such, there are no new specialists.
27I also disagree with the applicant that it would be unfair to deal with this serious and substantive issue at a preliminary point without considering the details, evidence, testimony of the applicant and testimony of the specialist on the new evidence. The parties at the case conference have already agreed that this matter will proceed in writing, and there will be no affidavits filed for the substantive hearing if one takes place. As such, there will be no oral or written testimony from Dr. Lin with respect to her records nor the applicant.
28While J.A. v. Aviva Insurance Canada, 2020 CanLII 12736 (ON LAT) confirmed that an insured can reapply for a CAT determination based on a material change, the applicant has failed to demonstrate that there is a material change. The applicant has not produced a new OCF-19, nor as she provided evidence that she may be entitled to CAT under any other criterion. The applicant is relying on essentially the same evidence that has already been considered by the Tribunal and a determination has been made. The updated OHIP Summary and records of Dr. Lin do not constitute a material change, as they do not speak to whether the applicant is CAT impaired, and the diagnosis of major depressive disorder, chronic; and chronic pain, have already been considered by the Tribunal. I also find the authority of 17-006816 v. Co-operators General Insurance Company, 2017 CanLII 81577 (ON LAT) unpersuasive as the applicant has failed to provide any evidence that her condition has declined or deteriorated following the previous Tribunal decision. I further find P.Y. v Aviva General Insurance Company, 2019 CanLII 101598 does not assist the applicant, as there is a lack of new evidence that shows a new physical or psychological decline in her condition as a result of the accident. In contrast, in the above-referenced authority, there was new evidence that could not be obtained prior to the Tribunal’s previous decision which demonstrated that the applicant had psychological injuries as a result of the accident.
29The applicant further submits that the respondent’s denial letter dated February 9, 2022 was noncompliant pursuant to sections 45(3)(a) and (b) of the Schedule. Further, the applicant submits that the respondent did not arrange insurer’s examinations and as such does not have medical evidence to rebut the applicant’s CAT application. While I find that the denial letter dated February 9, 2022 was sent beyond the 10 days mandated under the Schedule, Section 45 of the Schedule does not articulate consequences for failing to meet the requirements of s. 45(3). I further agree with the respondent that there is no obligation pursuant to section 45(3) to conduct s.44 CAT examinations.
30I agree with the respondent that the applicant is asking the Tribunal to re-weigh the earlier evidence and come to a different result and that this would compromise the integrity of the LAT adjudicative process. I therefore find that the integrity of the Tribunal’s adjudicative process would be significantly undermined if the current application seeking a CAT designation under criterion 8 proceeded forward, because the adjudicator would need to re-weigh the earlier evidence provided in the previous application.
Is the applicant barred from proceeding with the dispute over the OCF-18 for physiotherapy services?
31I find that the applicant is barred from proceeding forward with the dispute over the OCF-18 for physiotherapy services.
32The Tribunal has already decided that the applicant has failed to demonstrate that an OCF-18 for chiropractic services was reasonable and necessary due to the applicant’s reliability and failure to demonstrate that her complaints are linked to the subject accident. In particular, the Tribunal noted at paragraph 18 of its previous decision that the records of Dr. Lam demonstrated that the applicant had headaches, nausea, dizziness, neck, and shoulder pain, both pre-accident and post accident. Further, the applicant failed to provide a persuasive opinion that considered whether her ongoing issues may be due to her pre-accident issues. The Tribunal further concluded that based on the evidence that the applicant provided, there were limited physical injuries as a result of the accident. While I note that the previous decision of the Tribunal dealt with chiropractic services and not physiotherapy services in the current application, the test remains whether the OCF-18 is reasonable and necessary. The applicant is relying on the same evidence when the Tribunal has previously already determined that the applicant has demonstrated limited physical injuries as a result of the accident and, more importantly, found the applicant to be unreliable.
33The updated OHIP Summary and records of Dr. Lin do not provide any new evidence that has not already been considered by the Tribunal. The OHIP Summary and records of Dr. Lin do not demonstrate that the applicant now has new physical impairments that would warrant physiotherapy treatment. The Tribunal has already considered Dr. Lin’s diagnosis of chronic pain when reaching its previous decision.
CONCLUSION AND ORDER
34For the reasons set out above, I find that the applicant is barred from proceeding forward, and as such, the application is dismissed.
Released: August 11, 2023
Tanjoyt Deol
Adjudicator