Licence Appeal Tribunal File Numbers: 25-002968/AABS, 25-002972/AABS, and 25-002974/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:
[CB]
[TG]
[BG]
Applicant
and
Belairdirect Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Gordon W. Harris, Counsel
For the Respondent:
Darrell P. March, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1[JG], the wife of [CB] and the mother of [TG] and [BG] (“the Applicants”), was involved in an automobile accident on April 24, 2019. The Applicants claim that they suffered injuries in relation to the accident and sought benefits from Belairdirect Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”).
2The Applicants were denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
3The preliminary issues to be decided are:
i. Are the Applicants barred from proceeding to a hearing by the doctrine of res judicata?
ii. In the event the Applicants are not found to be barred from proceeding to a hearing by the doctrine of res judicata, does the applicant meet the definition of an insured person under s. 3(1) of the Schedule?
iii. Is the Respondent entitled to any costs?
RESULT
4The Applicants are barred from proceeding to a hearing by the doctrine of res judicata.
5No costs are payable.
BACKGROUND
6[JG] was walking on the sidewalk with a long-time friend when an impaired driver drove a vehicle off the road, mounted the curb and fatally struck the long-time friend. [JG] managed to avoid being struck by the vehicle, but the incident left her with catastrophic psychological injuries. The Respondent is [JG]’s insurer and has agreed that she sustained a catastrophic injury as a result of the accident.
7The Applicants claims that they have since developed injuries arising from the accident [JG] was involved in. They sought entitlement to benefits from the Respondent in light of the development of psychological injuries. The Respondent denied the Applicant’s claims for benefits on the grounds that they did not meet the definition of an insured person pursuant to section 3(1) of the Schedule.
8The Applicants applied to the Tribunal for resolution of the dispute. In the decision [B], [GB] and [GB] v. Belair Direct Insurance Company, 2023 ONLAT (Unreported) (“the preliminary issue decision”), the Tribunal concluded that the Applicants were not entitled to make a claim under the Schedule.
9The basis for the decision was that the Applicants were unable to claim benefits because [JG] never sustained a physical injury as a result of the accident. The Tribunal concluded that section 3(1)(a)(ii) of the Schedule excluded the Applicants from making claims because the person involved in the accident sustained only psychological injuries and that subsection of the Schedule requires a person sustain a physical injury.
10The Applicants sought reconsideration of the decision and argued that section 3(1)(a)(ii) should be declared unconstitutional under section 52(1) of the Constitution Act, 1982.
11On reconsideration, the Tribunal found that the Applicants gave improper notice of the constitutional question. It found that the notice was deficient because it was submitted before the circumstances requiring the notice became known. It found that the notice was delivered on June 26, 2023, prior to the Tribunal issuing its decision, dated July 25, 2023. Accordingly, it declined to consider the Applicants’ constitutional question.
12On reconsideration, the Tribunal also found no error of law in concluding that the evidence did not support a finding that [JG] sustained a physical injury as a result of the accident, and that the Applicants were excluded from claiming entitlement to benefits under the Schedule because her injuries were only psychological.
13The Applicant’s submissions do not explain why they did not appeal the preliminary issue decision or the reconsideration of the preliminary issue decision, despite having a statutory right of appeal to do so under section 11(6) of the Licence Appeal Tribunal Act, 1999. Similarly, it is unclear why they did not seek judicial review of the prior decisions.
14Rather, turning to the current application, the Applicants are instead again asking the Tribunal to consider whether they are insured persons, and test constitutionality of section 3(1)(a)(ii) of the Schedule. The Applicants submit that they delivered an additional Notice of Constitutional Question, and that the matter is not subject to res judicata because the case being advanced under this application rests on the constitutionality of section 3(1)(a)(ii) of the Schedule. Moreover, the Applicants submit that there is new evidence that demonstrates that [JG] sustained physical injuries as a result of the accident, and that the Applicants sustained physiological injuries as a result of [JG]’s involvement in the accident.
15The Respondent submits that the current application is an attempt to re-litigate the prior decisions and is not permitted by the doctrine of res judicata. It also maintains that the Applicants are not insured persons by operation of section 3(1)(a)(ii) of the Schedule.
ANALYSIS
Res Judicata
16The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. According to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 25, there are three preconditions that must be established to apply res judicata. The preconditions are:
i. The same question has been decided;
ii. The prior decision must have been a final judgement; and
iii. The parties to the decision were the same as the parties to the proceedings in which res judicata is raised.
17In Toronto (City) v. CUPE Local 79, 2003 SCC 63 (“CUPE”), at para. 52, the Supreme Court of Canada identified certain situation where res judicata may be waived:
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.
18The Respondent submits that the question before the Tribunal for this hearing is the same as the question before the Tribunal in the preliminary issue decision and reconsideration: whether the Applicants are entitled to benefits by nature of being an insured person pursuant to subsection 3(1)(a)(ii) of the Schedule. It submits that the preconditions are met: the parties to this application and the issue in dispute are identical to the parties in the unreported decision, the evidence was reviewed in the unreported decision and it was based on the merits of the claim, and the previous decision is a final decision.
19The Respondent submits that there is no fresh new evidence that would enable the Tribunal to waive the doctrine of res judicata. It submits that the Applicants have not tendered any evidence to demonstrate why any reports or conclusions in relation to [JG]’s physical injures were not available for the previous hearing. It also submits that there is no evidence of the unreported decision being tainted by fraud or dishonesty.
20The Applicants submits that res judicata should not apply because the prior decision never addressed the constitutional question at that time. The Applicants also submit that there is fresh evidence that was previously unavailable which demonstrates that [JG] sustained physical injuries as a result of the accident. The Applicants have also included evidence that they sustained psychological injuries as a result of the accident and that this is fresh new evidence for the Tribunal to consider.
21Lastly, on the issue of whether res judicata applies, the Applicants submit that it would be an injustice to apply res judicata to the facts in this case in light of the facts and new evidence, the consumer protection purpose of the Schedule, the stakes that would allow family members to obtain much-needed treatment, and the overall constitutional question that underlies the entire matter.
22In reply, the Respondent reiterates that the Applicants have not tendered new evidence that was not previously available for the first hearing. It resubmits that any application to change a finding must be based on “fresh” new evidence that was not available at the arbitration or appeal, that would conclusively impeach the original results, or that there was an error in the order.
23I find that the conditions for res judicata are met, and the Applicants have not demonstrated that it should be waived in this situation.
The three factors for res judicata are met
24There is no dispute that the Applicants are the same in this application as in the preliminary issue hearing, and that the reconsideration of the preliminary issue decision is a final decision.
25At issue in this application is whether the Applicants are insured persons. This is the same issue that was addressed in the preliminary issue decision and the reconsideration of it.
26I reject the Applicants’ submission that the issue in this application is different than the preliminary issue decision because the issue here involves the constitutional question of whether the Applicants are discriminated against by the operation of subsection 3(1)(a)(ii) of the Schedule, in that it creates a separate class of insured persons by distinguishing between physical and psychological injuries.
27The Applicants were aware of the constitutional question at the time of the hearing and chose not to issue any submissions with respect to it. The Applicants provided notice of the constitutional question on June 26, 2023, a month prior to the Tribunal issuing the preliminary issue decision, but chose not to issue submissions on the issue, nor seek leave from the Tribunal to make additional submissions in relation to the constitutional question. Further, the constitutional question was discussed in the reconsideration of the preliminary issue hearing. The issue of the constitutional question was dismissed because the notice provided by the Applicant was not delivered “as soon as the circumstances requiring the notice became known”, and because the Applicant’s arguments were not made in compliance with the Licence Appeal Tribunal Rules, 2023.
28In addition to the above, I highlight the fact that the Applicants intended to address the constitutional question pending the outcome of the preliminary issue hearing. The notice of constitutional question submitted by the Applicants in relation to the preliminary issue hearing, dated June 26, 2023, states that the Applicants intend to argue the constitutionality the Tribunal “pending the results of a Preliminary Issue Hearing”. From this language, I conclude that the Applicants intended to address the constitutional question following the preliminary issue decision.
29Accordingly, I find that the issue before the Tribunal at this hearing remains the same issue addressed in the preliminary issue hearing and the reconsideration of it.
Insufficient grounds to re-litigate the issue
30In CUPE, at paragraph 52, the Supreme Court of Canada found that re-litigation should be avoided unless the circumstances dictate that re-litigation is necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. It found that there may be instances where re-litigation will enhance, rather than impeach, the integrity of the judicial system. It highlights that re-litigating issues may be necessary where the first decision was tainted by fraud or dishonesty, fresh new and previously unavailable evidence conclusively impeaches the original results, or when fairness dictates that the original decision should not be binding in the new context.
31There are no allegations of fraud or dishonestly to consider in this matter.
32I find no fresh, new, and previously unavailable evidence that would conclusively impeach the original results. Recall, the preliminary issue decision excluded the Applicants as insured persons because, according to that decision, [JG] never sustained physical injuries in the accident. The Tribunal found that [JG] sustaining a physical injury as a result of the accident was a requirement for the Applicant’s to be insured persons. Thus, any fresh new evidence must conclusively impeach the conclusion that [JG] never sustained a physical injury in the accident.
33The Applicants submit two new assessment reports to support their claim that [JG] sustained a physical injury as a result of the accident. The assessment report by Dr. T. Suhail, rheumatologist, dated November 18, 2024, notes [JG]’s complaints of joint and neck discomfort since the accident, and concludes that her presentation aligns with fibromyalgia features, and that her neck discomfort appears to be myofascial in nature. The assessment report by [Dr.SM] family physician at the [KP Clinic], dated December 6, 2024, acknowledges [JG]’s complaints of neck and back pain, and the impression in the report listed: myofascial pain, mechanical low back pain, mechanical neck pain, fibromyalgia, chronic pain syndrome, and osteoarthritis.
34I find this new evidence is insufficient to warrant re-litigation of the issue of whether the Applicants are insured persons. This is because the November 18 and December 6, 2024 reports do not conclusively impeach the original results. Neither of the two assessment reports conclude that [JG] sustained physical injuries in the accident. Instead, the reports speculate that [JG] suffers from various pains since the accident. These findings do not conclusively demonstrate that she sustained a physical injury as a result of the accident.
35I find the other “new” pieces of evidence insufficient to warrant re-litigating the issue. Each of the Applicants here, [CB], [TG], and [BG], all submitted new evidence to demonstrate that they suffer from psychological injuries as a result of the subject accident. However, the preliminary issue decision turned on whether [JG] sustained a physical injury as a result of the accident. Thus, any additional evidence regarding the Applicant’s impairments or injuries will not impeach the findings in the original decision because their entitlement, according to the preliminary issue decision, flows from [JG] sustaining a physical injury. Having found no new evidence to impeach the finding that [JG] never sustained a physical injury, it follows that the evidence of the Applicants’ psychological injuries does not impeach the original decision. At paragraph 54 in Danyluk, the Supreme Court of Canada held that res judicata extends to issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that “issue” in the prior proceedings.
36Lastly, I am not convinced that fairness would dictate that the initial decision be re-litigated. According to the Applicant, the public law nature of the constitutional question outweighs any finality concerns, and that it would be an injustice to apply res judicata to the facts of this case in light of the new evidence, the consumer protection intention of the Schedule, the stakes to allow family members to obtain treatment, and the constitutional question that underlies the entire matter. I disagree with the Applicants on this issue because the new evidence is insufficient to interfere with the initial findings, and the stakes of the case, or the consumer protection nature of the Schedule, are insufficient to warrant relitigating the issue at the Tribunal where pursuit of the requested relief through a statutory appeal or judicial review process was not taken. To-date, the Applicants have not explained why they chose not to pursue an appeal or judicial review instead of relitigating the issue before the Tribunal or why they have not challenged the constitutionality of the impugned provision with a Superior Court application. Accordingly, I see no grounds to re-litigate the preliminary issue decision or reconsideration based on fairness where the Applicants did not avail themselves of the avenues for review available to them.
COSTS
37I find no costs payable.
38Costs may be granted in the event the Tribunal determines that a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
39The Respondent requests costs in relation to this Application, on the basis that the issues have previously been adjudicated. To the Respondent, the Applicant has sought to re-litigate the issues before the Tribunal on the previous decision instead of following the requisite appeal scheme.
40The Applicants submits that the Respondent’s submissions lack substance, and no costs may be payable as a result. They submit that costs are available where it is believed that a party has acted unreasonably, frivolously, vexatious, or in bad faith. Moreover, they submit that the claim is not subject to res judicata in light of the fresh evidence and constitutional question.
41I find no costs payable because the Respondent has not set out an amount being requested and has not identified any behaviour which occurred during the proceeding that would warrant a costs award. Costs requests must include an amount to be requested and must relate to a party’s behaviour during the proceeding. I am unable to award costs in this matter as no amount was requested and the Respondent never identified any behaviour by the Applicant which interfered with the Tribunal’s ability to carry out a fair and efficient process.
CONCLUSION AND ORDER
42The Applicants claims are subject to the doctrine of res judicata and are barred from proceeding to a hearing as a result.
43The Applications are dismissed.
Released: October 24, 2025
___________________________
Brian Norris
Adjudicator