RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 25-000446/AABS
Case Name: Ali Vahdati v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Adesina John, Paralegal
For the Respondent: Greg Specht, Counsel
OVERVIEW
1On August 1, 2025, the applicant requested reconsideration of the Tribunal’s preliminary issue decision released July 11, 2025 (“decision”).
2Stemming from an accident on March 19, 2020 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a preliminary issue written hearing. The adjudicator found the applicant was barred from proceeding with his application due to the doctrine of res judicata. Specifically, the Tribunal had previously determined the applicant remained subject to the funding and treatment limits of the Minor Injury Guideline (“MIG”): see Vahdati v. Allstate Insurance Company of Canada, 2025 CanLII 69526 (ON LAT). She also found there was no fresh evidence that would justify waiving the doctrine.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The applicant relies on Rule 18.2(a) and Rule 18.2(b) to support his request for reconsideration. He is seeking an order to set aside the decision, and for the Tribunal to either allow his application to proceed to a substantive issues hearing, or, in the alternative, to grant a new preliminary issue hearing before a different adjudicator.
5The respondent asks the Tribunal to dismiss the applicant’s request.
RESULT
6The applicant’s request for reconsideration is granted.
7The preliminary issue decision is cancelled, pursuant to Rule 18.4.
8This preliminary issue has been reheard as part of this present decision.
9The respondent’s request to bar the applicant’s application from proceeding to a substantive issues hearing based on the doctrine of res judicata is denied. The remaining preliminary issue and substantive issues shall proceed to a written hearing.
ANALYSIS
10The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
11One important point of context for this decision is that, despite it being raised by the respondent as the basis for engaging res judicata, it appears that the applicability of the MIG is not a substantive issue in this application.
12Though not referenced in either of the parties’ preliminary issue submissions, nor in the resulting decision now under review, I note that the applicant e-mailed the Tribunal and the respondent on May 6, 2025 to request the “withdrawal” of the MIG as an issue. The applicant further stated his intention “to proceed with all remaining issues” from his application, namely, the treatment plans. Since then, the applicant has not explicitly asked for the MIG to be reinstated as an issue before the Tribunal, nor has he addressed this withdrawal in his submissions.
13I will further address the impact of this withdrawal below.
Rule 18.2(b) – Errors of Fact or Law
14I find the applicant has established a ground for reconsideration, pursuant to Rule 18.2(b).
15The applicant alleges the adjudicator erred in two ways. First, the applicant claims the adjudicator did not address all three potential waivers of res judicata as enumerated by the Supreme Court of Canada in Toronto (City) v. CUPE, Local 79, 2003 SCC 63 (“CUPE”). In particular, she did not consider a possible waiver based on fairness. The applicant also alleges that the adjudicator erroneously found he had exhausted his available funding under the MIG.
16The respondent submits that tribunals do not have to mention every argument raised by the parties, and the adjudicator understood and grappled with the applicant’s submissions. Further, the respondent claims that any minor error about the amount left under the MIG had no bearing on the decision.
17For the following reasons, I find the applicant has demonstrated that his argument about a waiver based on fairness was not assessed by the adjudicator. I can then conclude that, if this argument had been addressed, it “would likely” have impacted the result.
18Citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (“Danyluk”), the applicant raised two arguments in his preliminary issue submissions regarding the Tribunal’s discretion over whether to apply res judicata. First, as discussed at length in the decision, the applicant argued that there was new evidence. The applicant then argued that applying the doctrine of res judicata would “undermine the procedural fairness” of the proceeding.
19Though the applicant did not cite CUPE in his preliminary issue submissions, the adjudicator determined that the arguments about discretion were best understood in the context of the three waiver categories laid out by the Supreme Court in this decision (at paragraphs 14 – 17 of the decision, emphasis in original):
Waiver of Res Judicata and new evidence
I find that the applicant has not established that res judicata should be waived in this case.
The applicant argues that if res judicata does apply, it should be waived, since fresh, new evidence, previously unavailable, conclusively impeaches the original result, and fairness dictates that the original result should not be binding in the new context.
As set out in [CUPE] at para. 52, res judicata can be waived in the following situations:
a) The first proceeding is tainted by fraud or dishonesty;
b) Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or
c) When fairness dictates that the original result should not be binding in the new context.
The applicant does not argue the first proceeding was tainted by fraud or dishonesty.
20Despite determining that two of the three grounds had been raised by the applicant in paragraph 15 of the decision, namely, grounds b) and c) above, the adjudicator only considered a waiver based on the ground of new evidence. Specifically, from paragraphs 18 – 24 of the decision, there is a detailed analysis of the applicant’s position that there is a psychological report that should have been considered during the initial hearing. However, the adjudicator does not address whether res judicata should be waived based on fairness, i.e., ground c). In other words, while she references this part of the applicant’s position, she does not assess the merits of this argument in her reasons. Without this assessment, I find the adjudicator erred in her consideration of the applicant’s case. I further find that this error would likely have impacted the outcome of the decision, because there is a possible ground for allowing the application to proceed that was not explicitly considered.
21Turning to the respondent’s submissions, I do not find they alter my conclusion. I accept that tribunals are not required to address every argument raised by the parties. However, the applicant’s submissions about a waiver based on fairness were not a minor, tertiary position. They are part of the test set out by the Supreme Court in CUPE, which is binding on the Tribunal. In fact, the adjudicator noted that the applicant had raised this ground. As such, I do not see this reconsideration request as an attempt to re-argue an unsuccessful position from the hearing, nor is it a request for the Tribunal to list every trivial claim made in a party’s submissions. Rather, it is the applicant seeking to have this key argument addressed in the Tribunal’s reasons.
22Because of this finding, it is not necessary to determine whether the applicant has also established the other purported error about MIG funding, nor do I have to assess the parties’ positions pursuant to Rule 18.2(a).
Rule 18.4 – Cancelling the Decision
23Turning to the outcome of the reconsideration pursuant to Rule 18.4, I find it is appropriate to use my authority to cancel the decision. The applicant demonstrated that one of his key arguments was not explicitly addressed, such that I am satisfied that the only appropriate remedy is to cancel the decision. Since the adjudicator did not provide any explicit reasons about this argument, I find it is, by extension, not possible for me to confirm or vary the decision based on this same set of reasons.
24I order the preliminary issue to be reheard based on the parties’ submissions and evidence. Considering the need for an efficient resolution to this dispute, I will conduct the rehearing as part of this reconsideration decision. I will rely on the submissions and evidence the parties provided as part of the preliminary issue hearing.
Rule 18.4 – Rehearing the Preliminary Issue
25The sole issue before the adjudicator in the preliminary issue hearing was whether the applicant was barred from proceeding to the substantive issues hearing by virtue of the doctrine of res judicata. There is another preliminary issue in dispute (i.e., a limitations defense), but the case conference adjudicator ordered this defense to be heard alongside the substantive issues.
26I find the doctrine of res judicata does not apply to this application. As such, I order the remaining preliminary issue and substantive issues to proceed to a written hearing as laid out in the case conference report and order, and as amended in my Order below.
27Discussing the issue estoppel branch of res judicata in CUPE, the Supreme Court summarized the scope of this doctrine at paragraph 23 (underline in original):
Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, at para. 25, per Binnie J.).
28Then, in speaking about the overlap between the discretionary authority to waive both issue estoppel and the doctrine of abuse of process, the majority went on to state at paragraph 53 (emphasis added):
The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).
29In other words, decision-makers are not asked to conduct the three-factor analysis for res judicata in a rigid and mechanistic fashion. Rather, they should consider the overall fairness of the situation, alongside the legitimate goal of restricting re-litigation. This analysis is highly fact specific. I would also add that, in the context of the Schedule, res judicata must be applied in a manner that upholds the consumer protection mandate.
30In the present case, I find there is no debate that the parties are the same parties who participated in the previous dispute. However, in light of the unique circumstances of this case (and considering the Tribunal’s case law about subsequent applications involving the MIG), I am not satisfied that the Danyluk and CUPE test for res judicata has been met. As detailed below, I do not find the respondent has shown that the same issues are before the Tribunal at this time.
31Relying on D.T. v. Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ON LAT) (“D.T.”), the respondent argues that the key issue in this application is the same as the issue the Tribunal decided in the first application, i.e., the applicability of the MIG based on a claim of a psychological impairment. Therefore, while there may be new treatment plans, the respondent contends that these new benefits were all denied in accordance with the MIG—denials that mean the key issue remains the same.
32In response, the applicant highlights the new treatment plans to claim that the Tribunal’s “MIG determination itself lacks finality”, because “a finding on whether the MIG applies must be tied to a specific benefit denial”. The applicant also suggests that “the MIG determination is not static and depends on the evolving medical evidence” associated with each new treatment plan.
33First, I note that the applicability of the MIG to an insured person’s case is not a “static” determination, as there may be situations where a party can present new evidence to again challenge an insurer’s determination about this funding limit. I accept that the adjudicator in D.T. states at paragraph 24 that “medical deterioration would necessarily have to be proven with fresh new evidence unavailable at the first hearing,” but the principle remains—the MIG may be re-evaluated. A similar line of reasoning was accepted by the Tribunal in a case cited by the applicant: see Khashi v. Travelers Insurance Company of Canada, 2024 CanLII 33174 (ON LAT), at paragraph 14.
34However, even if I accepted that there was no new evidence to consider, such that the prior MIG decision was “final”, I note that the applicant’s new treatment plans still need to be adjudicated. As he argues in his preliminary issue submissions: “… additional OCF-18s may be submitted and must be evaluated by the insurer in accordance with sections 38(8) and, where applicable, 38(11) of the SABS would apply.” I agree. The new treatment plans still need to be assessed based on any arguments the applicant may raise about compliance with s. 38 of the Schedule.
35This point is especially pertinent in this case, as the applicability of the MIG is not an issue before the Tribunal. Once again, I note that the applicant e-mailed the Tribunal and the respondent to request the “withdrawal” of this issue before the preliminary issue hearing took place. The applicant then stated that he intended “to proceed with all remaining issues”. As noted in his preliminary issue submissions, it appears that the applicant may raise an argument about s. 38 compliance in his substantive submissions. These are new arguments for entitlement not previously adjudicated by the Tribunal, so these arguments need to be tested, alongside any other entitlement arguments that the parties may raise.
36Given this finding, it is not necessary for me to consider the parties’ arguments with respect to waiving the doctrine of res judicata.
37Taken together, I find the doctrine of res judicata does not apply to this present application. As such, the parties may proceed with their dispute to a written hearing as detailed in the case conference report and order, and as amended in my Order below. The written hearing will address the preliminary issue about the limitations defense, as well as the substantive issues that remain in dispute.
CONCLUSION & ORDER
38The applicant’s request for reconsideration is granted.
39The preliminary issue decision is cancelled, pursuant to Rule 18.4.
40This preliminary issue has been reheard as part of this reconsideration decision.
41The respondent’s request to bar the applicant’s application from proceeding to a substantive issues hearing based on the doctrine of res judicata is denied.
42Aside from the amendments made in the following paragraph, the remaining preliminary issue and substantive issues shall proceed to a written hearing as ordered in the case conference report and order released on April 17, 2025.
43The following amendments are made to the case conference report and order:
a. Paragraph 9 shall now read: “The parties agreed that they shall exchange the following by no later than 60 calendar days from the release of the reconsideration decision:”
b. Paragraph 10 shall now read: “By no later than 80 calendar days from the release of the reconsideration decision, both parties shall exchange all other documents and things not previously exchanged that they intend to rely on as evidence at the hearing.
c. Paragraph 11 will now read: “By no later than 100 calendar days from the release of the reconsideration decision, the parties shall exchange any additional documents or things responsive to documents or things that have already been exchanged or produced that they intend to rely on as evidence at the hearing.”
44The Tribunal will set the date for the written hearing.
45I am not seized.
Craig Mazerolle Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: October 14, 2025