22-007955/AABS-PI
Licence Appeal Tribunal File Number: 22-007955/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:
Lyndon Handy
Applicant
and
Aviva General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Craig Mazerolle
APPEARANCES:
For the Applicant:
Eric Winkworth, Counsel
For the Respondent:
Noella Thompson, Counsel
Heard by way of written submissions
BACKGROUND
1Lyndon Handy, the applicant, was involved in an automobile accident on August 31, 2016 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 benefits by the respondent, Aviva General Insurance Company.
2A hearing is set to start on October 16, 2023. The sole issue in dispute is catastrophic impairment.
PRELIMINARY ISSUE IN DISPUTE
3The preliminary issue in dispute is: whether the applicant is barred from proceeding to the hearing on the issue of catastrophic determination because this issue is subject to res judicata?
RESULT
4The applicant is barred from proceeding with his application as it relates to Criterion 7 for catastrophic impairment. The hearing shall continue, but only as it relates to Criterion 6 for catastrophic impairment.
PAGE LIMITS
5The case conference report and order (released March 23, 2023) provided the following page limits for the parties’ preliminary issue submissions: respondent’s initial submissions – 10 pages; applicant’s responding submissions – 10 pages; and respondent’s reply – 5 pages.
6The respondent’s citations in its initial submissions were completed as endnotes. Upon review of the parties’ submissions, I find these endnotes bring the total number of pages for the initial submissions to 12 (including a single line citation on page 12). The respondent’s submissions do not conform with the page limit ordered by the case conference adjudicator. As such, I did not consider page 10 of the respondent’s initial submissions. The endnote references made on pages 1 to 9 would have required this space.
7I did not find a similar issue with the reply, nor did I find any issue with the applicant’s responding submissions.
ANALYSIS
Background
8Prior to this current application, the applicant applied to the Tribunal for resolution of the parties’ accident benefits dispute on May 25, 2020: i.e., File No. 20-006124/AABS. One of the issues was whether the applicant had sustained a catastrophic impairment. The OCF-19 at the time stated the applicant had sustained a catastrophic impairment pursuant to Criterion 7.
9A hearing was held between November 15, 2021 and February 7, 2022 before Adjudicator Neilson.
10Prior to and during the hearing, the applicant unsuccessfully asked to add a spinal impairment assessment from Dr. John Baird (dated October 8, 2021) to the hearing record. First denied by Vice-Chair Hunter (order dated December 8, 2021), Adjudicator Neilson later rejected the applicant’s second request to add this report to the evidentiary record during the hearing (request heard January 4, 2022; order released January 7, 2022).
11In a letter dated January 5, 2022, the applicant submitted a new OCF-19 (dated January 4, 2022) to the respondent. Accompanied by a summary report from Dr. Tajedin Getahun (dated December 19, 2021), this OCF-19 is based on Criteria 6 and 7.
12The respondent subsequently asked the applicant to attend insurer’s examinations (letters dated January 18, January 21, and January 26, 2022). In and around this time, the applicant asked the respondent for consent to add this OCF-19 to the ongoing hearing. The respondent did not consent (e-mails dated January 20, January 24, and January 28, 2022).
13After the hearing, Adjudicator Neilson rendered a decision finding the applicant had not sustained a catastrophic impairment pursuant to Criterion 7: Handy v Aviva Insurance Company of Canada, 2022 CanLII 78793 (amended decision released September 16, 2022, the “Neilson Decision”). Prior to its release, the applicant filed his current application on July 18, 2022.
14The parties have not presented me with any evidence to show that the applicant has appealed the Neilson Decision.
Parties’ Positions
15The respondent submits that that the issue of catastrophic impairment has been decided by the Tribunal. As such, the applicant’s attempt to relitigate this issue amounts to an abuse of process. According to the respondent, the issue should not be allowed to proceed to the hearing, pursuant to the doctrine of res judicata. The respondent also claims that none of the exceptions to res judicata apply.
16The applicant submits that the respondent’s claim of res judicata does not apply. Instead, the applicant argues there is a new OCF-19 from Dr. Getahun, and there has been no assessment done by the Tribunal about the evidence contained in Dr. Baird’s report. The applicant also cited 17-002561/AABS v TTC Insurance Company Limited, 2018 CanLII 8101 (ON LAT) for the proposition that the Tribunal has adjudicated different OCF-19s as distinct issues.
Four Factors for the Doctrine of Res Judicata
17The doctrine of res judicata prevents a party from relitigating an issue that has already been decided: see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. As recently summarized in Amalathasan v. Certas Home and Auto Insurance, 2023 CanLII 17707 (ON LAT) (“Amalathasan”), four preconditions must be established before the Tribunal can exercise its discretion 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; and,
IV. The prior decision must have been a final judgment.
18I am satisfied that the four factors for res judicata are engaged. This current application a.) involves the same parties; b.) the original claim fell within the Tribunal’s jurisdiction; c.) the original claim was adjudicated on its merits following a hearing; and d.) the Neilson Decision is a final judgment. However, after reviewing the parties’ submissions, it appears a key point of contention is whether the applicant’s current application involves the same issue that was decided by the Neilson Decision. If the same issue is not at play, res judicata does not apply.
Same Issue
19According to the applicant, there is a new issue—the OCF-19 that lists Criteria 6 and 7. The Neilson Decision only considered Criterion 7, so the applicant argued it would be illogical to claim that the same issue had been decided, especially since Dr. Baird’s report was not included as evidence in the earlier hearing.
20Criteria 6 and 7 are defined in the Schedule at s. 3.1 as follows:
… a physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more physical impairment of the whole person.
… a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of the whole person.
21Though there is a significant overlap between these criteria (namely, the cumulative nature of Criterion 7’s reliance on the rating from Criterion 6), I still find these criteria constitute distinct issues. The Legislature determined that these criteria are separate standards for establishing a catastrophic impairment, so I do not find it would be reasonable to use the discretionary doctrine of res judicata to disallow the applicant from pursuing a claim under Criterion 6.
22However, since the Neilson Decision did decide the issue of Criterion 7, and I am satisfied that the four factors of res judicata are engaged, I must then consider if any of the three grounds for waiving res judicata apply.
Waiver of Res Judicata
23As stated in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 and Amalathasan, there are three grounds the Tribunal may use to exercise the discretion to waive res judicata, i.e., fraud, fairness, and new evidence. For the first two grounds, I do not find the applicant has presented any compelling reason for why the initial proceeding was marked by fraud, nor has he established that fairness requires the Neilson Decision to not be binding. Instead, I find that the applicant was provided with the opportunity to participate in a hearing where he was able to present and question evidence. The adjudicator then provided reasons to explain the final determination of the applicant’s claim.
24The main ground I must, therefore, address is whether: “Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results”: see Amalathasan at para. 12. I find that Dr. Baird’s report and Dr. Getahun’s OCF-19 and related summary were not “previously unavailable”. Rather, all of these documents existed prior to the release of the Neilson Decision.
25I would further note that, by attempting to relitigate Criterion 7 through a fresh application, the applicant is not following the Tribunal’s established processes. Specifically, the proper process would have been to challenge the exclusion of Dr. Baird’s report in the context of the original application, e.g., file an appeal of the Neilson Decision. By instead filing another application with the Tribunal based on the same criterion and excluded evidence, I find the applicant‘s actions are an attempt to circumvent the Tribunal’s normal processes.
26Taken together, I find the doctrine of res judicata is engaged for Criterion 7. I further find the applicant has not established any of the grounds for waiving res judicata. I conclude that it is appropriate to exercise my discretion to disallow the applicant from relitigating Criterion 7 for catastrophic impairment, pursuant to res judicata. Criterion 6 may proceed to a hearing.
Applicant’s Other Submissions
27The applicant raised several other concerns in his submissions, but I do not find they impact my determination. First, the applicant contended that he reached his non-catastrophic limit in April 2022. This submission does not negate my finding that he received a fair, merits-based adjudication of his claim under Criterion 7.
28Second, the applicant submitted that the respondent found Dr. Getahun’s OCF-19 required further assessments. Insurers have a duty to continue adjusting a claim, so I do not find adherence to this duty removes the respondent’s ability to ask the Tribunal to engage the doctrine of res judicata.
29Third, the applicant submitted that the respondent was aware that denying consent to his request to add Dr. Getahun’s OCF-19 during the previous hearing “would require a further application to this Tribunal.” I was not provided with a compelling reason for why the possibility of a further application would impact the application of res judicata.
30Fourth, the parties disputed whether there has been a denial of Dr. Getahun’s OCF-19. Regardless of the parties’ positions on this question, s. 45(3) of the Schedule provides a timeline for when insurers must respond to an OCF-19. This period has passed, so I find this OCF-19 is properly in dispute.
31Finally, the applicant claimed the respondent failed to provide certain IE reports related to Dr. Getahun’s OCF-19 until months after they had received them. Specifically, the respondent did not serve these reports until March 2023, despite receiving them in April 2022. I have not been provided with a compelling reason for why compliant service of these IE assessments would have impacted this preliminary issue.
COSTS REQUEST
32The applicant sought costs, as he argued the respondent’s “motion” is an abuse of process.
33I find the applicant has not met the high standard for ordering costs under Rule 19.1 of the Licence Appeal Tribunal Rules. Aside from the fact that I have accepted the respondent’s position on the preliminary issue (in part), I find the applicant has not demonstrated why the respondent’s actions meet the high standard needed to order costs.
ORDER
34The applicant is barred from proceeding with his application for catastrophic impairment based on Criterion 7, pursuant to the doctrine of res judicata. The substantive issue hearing shall continue for Criterion 6.
35Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.
Released: September 1, 2023
___________________________
Craig Mazerolle
Adjudicator