Citation: Co v. Aviva Insurance Company of Canada 2024 ONLAT 23-008640/AABS-PI

Licence Appeal Tribunal File Number: 23-008640/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:

Rosanna Co

Applicant

and

Aviva Insurance Company of Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Ramendeep Minhas, Counsel

For the Respondent: Natalie Spinelli, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Rosanna Co, the applicant, was involved in an automobile accident on December 6, 2018, 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 Insurance Company of Canada, 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:

i. Is the applicant barred from proceeding to a hearing by the doctrine of res judicata?

result

3The applicant is barred by the doctrine of res judicata from proceeding with her application.

ANALYSIS

Background

4The applicant was involved in an accident on December 6, 2018 and filed an application with the Tribunal file no. 20-013774/AABS. In an amended decision dated June 20, 2023, the Tribunal determined that the applicant remained within the Minor Injury Guideline (“MIG”), and that she was not entitled to the treatment plans for assistive devices or a psychological assessment, as the MIG limits had been exhausted. The applicant did not file a reconsideration of the decision.

5The applicant subsequently submitted additional treatment plans which were denied by the respondent. The applicant then re-applied to the Tribunal for resolution in the present case. This second application again seeks a determination that the applicant be removed from the MIG. She has also applied to the Tribunal for adjudication of two new treatment plans and interest.

6At the case conference held on January 22, 2024, the respondent raised the preliminary issue that the doctrine of res judicata applies to the current application.

Res Judicata

7The 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 discretion to apply res judicata, as set out by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 18:

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.

8I am satisfied that these preconditions have been met and that the doctrine of res judicata applies to this application. The applicant in the 2023 decision and in the present case are the same. The prior claim is within the Tribunal’s jurisdiction. The 2023 decision was on the merits and it was a final judgement. The applicant has not sought a reconsideration or appeal of the 2023 decision. However, the applicant further argues that res judicata should be waived in this instance.

Waiver of Res Judicata on the basis of new evidence

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.

10The applicant submits that updated clinical notes and records (“CNRs”) from her family physician establish a material change in circumstances showing a continuing decline years after the accident. She relies on Tribunal decisions 17-006816 v Co-operators General Insurance Company, 2017 CanLII 81577 (ONLAT) and DT v. Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ONLAT) to argue that a MIG determination is not static and that additional injuries or conditions may develop. As such, the applicant submits that her MIG claim should be reassessed as new medical evidence that was previously unavailable has come to light.

11I find that the new evidence submitted by the applicant does not impeach the original results.

12The new evidence submitted by the applicant consists solely of CNRs from her physician, Dr. Gindi. However, I agree with the respondent that the records do not establish accident-related impairments that would warrant a rehearing of the issue.

13The CNR entries from 2022 to 2024 show a number of visits for unrelated medical issues. The applicant points to two CNR entries in 2023 where she reported stress and anxiety, as evidence that she developed new accident-related psychological impairments. However, the entries clearly indicate that the applicant had been experiencing stress due to work, and that she reported feeling anxious for only “a few months”. There is no reference to stress or anxiety caused by the accident, nor was the applicant referred for further treatment or assessments or prescribed any medication. The applicant has not led any evidence to establish that the psychological symptoms were accident-related.

14The applicant further points to July 2023 CNR entries where she reported back pain “since the accident”. However, no subsequent entries were provided to indicate whether these complaints continued, no medication was prescribed, and no assessments or further investigation were ordered by Dr. Gindi. The only diagnosis in the July 4, 2023 CNR entry is of “muscular pain”. The 2023 Tribunal decision found that the applicant had failed to establish that she suffered from chronic pain as a result of the accident. I agree with the respondent that these limited reports of pain do not constitute compelling new evidence to warrant a removal from the MIG on the basis of chronic pain.

15When considering the evidence tendered, I am not satisfied that these limited CNR entries show an accident-related deterioration or material change in the applicant’s medical condition since the previous hearing. As such, the applicant has not presented new evidence that would conclusively impeach the original results to warrant a waiver of res judicata. The applicant remains bound by the previous determination by the Tribunal in the 2023 decision and is subject to treatment within the MIG.

16The applicant further submits that the doctrine of res judicata does not apply to the two treatment plans currently in dispute, as they are completely new treatment plans that were not previously adjudicated. She relies on two Tribunal decisions Bhullar v TD Insurance Meloche Monnex, 2020 CanLII 94801 (ON LAT) and Bhullar vs. TD General Insurance Company, 2023 CanLII 34469 (ON LAT) to argue that subsequent applications can be filed by a party to address new treatment plans, even if a decision was rendered on previous treatment plans.

17I am not persuaded by the applicant’s argument. As I have found that the doctrine of res judicata applies to this application, the applicant remains bound by the previous determination by the Tribunal that she is subject to the treatment limits of the MIG. As the MIG limits have been exhausted, it would follow that she would not be entitled to new treatment plans, as they propose goods and services that fall outside of the MIG funding limit.

18Although the applicant relies on the Bhullar Tribunal decisions to argue that multiple applications can be brought forth by a party with respect to all new treatment plans, I find that these decisions are distinguishable. MIG determination was not an issue in dispute in either of the Bhullar decisions and MIG limits were not a consideration when addressing the treatment plans. In the present case, the applicant remains bound by the MIG funding limit, which the parties and previous Tribunal decision acknowledge has been exhausted. Given that no further funding remains under the MIG, it follows that the applicant would not be entitled to the disputed treatment plans.

CONCLUSION AND ORDER

19The doctrine of res judicata applies to this application. The applicant is barred from proceeding to the substantive hearing and the application is dismissed.