Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-001496/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:
Terry-Ann Cornelius
Applicant
and
Allstate Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Thulasi Kandiah, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Terry-Ann Cornelius (the “applicant”) was involved in an accident on February 7, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Allstate Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The first application to the Tribunal, bearing file number 22-002821/AABS, concerned the applicability of the Minor Injury Guideline (“MIG”) and entitlement to various treatment plans, and interest. A decision was issued, dated February 9, 2024 in which the Tribunal found that the applicant’s injuries were subject to the MIG, and therefore she was not entitled to the treatment plans.
3The applicant filed a second application to the Tribunal disputing the MIG and a plan for a chronic pain assessment. At the case conference on June 21, 2024, the respondent raised a preliminary issue of whether the applicant was precluded from proceeding with her application as her claim that her injuries fell outside the MIG had already been determined by the Tribunal and is therefore subject to the doctrine of res judicata. A written preliminary issue hearing was scheduled.
PRELIMINARY ISSUE IN DISPUTE
4The following preliminary issue is to be decided:
i. Is the applicant barred from proceeding to a hearing by the doctrine of res judicata?
RESULT
5The applicant is barred from proceeding with her application before the Tribunal to determine whether the injuries she sustained were subject to the MIG, as the doctrine of res judicata applies.
6The application is dismissed.
ANALYSIS
No submissions or evidence filed by the applicant
7At the case conference on June 21, 2024, the parties agreed that respondent’s submissions on the preliminary issue were due 21 calendar days after the case conference (July 12), followed by the applicant’s submissions 28 calendar days after the case conference (July 19). The Case Conference Report and Order (“CCRO”) stipulated at paragraph 6(iii) that if the party raising the preliminary issue failed to comply with the filing deadline, then the preliminary issue would be heard together with the substantive issues.
8The respondent filed its submissions on July 8, 2024 but they were inadvertently not uploaded by the Tribunal onto its system. A procedural order was issued in error indicating that the preliminary issue would be heard together with the substantive issues.
9The respondent filed a motion requesting that the preliminary issue hearing be reinstated. By order dated July 23, 2024 that request was granted, along with an extension of the timelines for the parties submissions on the preliminary issue. Despite this extension, the Tribunal has never received any submissions from the applicant on the preliminary issue.
The law
10The 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: Co v. Aviva Insurance Company of Canada, 2024 CanLII 15974 (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.
11The respondent submits that the doctrine of res judicata applies because of the Tribunal’s decision in Cornelius v. Allstate Canada, 2024 CanLII 10505 (ON LAT).
The four preconditions for res judicata are satisfied
12In 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 applicant’s injuries were predominantly minor, and therefore fall within the MIG. The decision in Cornelius v. Allstate Canada, 2024 CanLII 10505 (ON LAT) was a final decision as the applicant did not seek a reconsideration and nor did she appeal the decision.
13For these reasons, I find that the doctrine of res judicata applies to the issue of whether