Licence Appeal Tribunal File Number: 25-005078/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:
Sarah Syed
Applicant
and
Security National Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR: Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant: Imtiaz Hosein, Counsel Christos Kakaletris, Counsel
For the Respondent: Matthew Nieuwland, Counsel
HEARD: In writing
OVERVIEW
1Sarah Syed, the applicant, was involved in an automobile accident on November 4, 2018, and sought benefits from Security National Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing of her application by the doctrine of res judicata?
RESULT
3The applicant is barred from proceeding to a hearing of her application.
BACKGROUND
4On November 4, 2018, the applicant was involved in an accident as a front-seat passenger. She claimed accident benefits from the respondent pursuant to the Schedule. She exhausted her non-catastrophic limit of $65,000.00 and sought a catastrophic designation (“CAT”) to access enhanced benefits.
5The applicant filed a first application with the Tribunal on December 23, 2020 under Tribunal File Number 20-015339/AABS. In a Motion Order dated June 6, 2022, the Tribunal granted the applicant’s request to add 15 issues in dispute to the application. Amongst the added issues in dispute, the applicant sought a determination as to whether she sustained a CAT impairment under Criteria 7 and 8.
6The matter proceeded to a 10-day videoconference hearing in January 2023.
7On April 4, 2023, the Tribunal released its decision. Amongst its findings, the Tribunal found that the applicant did not sustain a CAT impairment under Criterion 7 or Criterion 8. This decision was upheld on reconsideration in a decision dated July 12, 2023 and affirmed on judicial review by the Divisional Court on July 11, 2024: see Syed v. Security National Insurance and Licence Appeal Tribunal, 2024 ONSC 3391. Leave to appeal to the Court of Appeal was refused (Court of Appeal File No. COA-24-OM-0250).
8On April 14, 2025, the applicant filed a second application with the Tribunal, i.e., the application herein, where she claims that she sustained a CAT impairment under Criterion 4. The applicant also claims for an award and interest.
ANALYSIS
9The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. According to Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (“Danyluk”) at para. 25, there are three preconditions that must be established before the adjudicator can determine whether to exercise their discretion to apply res judicata. The factors are:
i. That the same question has been decided; ii. That the decision was final; and iii. That the parties were the same in both actions.
10According to the Supreme Court of Canada in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63 (“CUPE”), at paras. 52 and 53, 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.
11The respondent submits that the doctrine of res judicata bars this application in full. It argues that the prior final finding that the applicant did not sustain a neurological injury from the accident, specifically a traumatic brain injury (“TBI”), precludes establishing Criterion 4, rendering the claim untenable. It submits that the applicant had a full opportunity to litigate the TBI issue at the prior hearing through expert evidence and cross-examination. Re-litigation now, years later, prejudices the respondent by forcing redundant defence and erodes public confidence in the Tribunal’s finality of the matter.
12The respondent further submits that even if strict estoppel does not apply, this application is an abuse of process. It collaterally attacks the Tribunal decision’s core finding of no TBI which was also upheld through all appeals. Relying on British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422 at para. 27 (“Figliola”), it argues that the prior process was fair and public interest demands finality in benefit disputes to control costs and prevent harassment. No discretion should be exercised to allow the application to proceed. The applicant’s delay in raising Criterion 4 suggests tactical maneuvering, not genuine need.
13Furthermore, the respondent submits that allowing this application to proceed violates the Tribunal’s mandate to ensure the expeditious, efficient, and cost-effective resolution of disputes, as enshrined in both the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (at section 2) (“SPPA”) and Rule 3.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).
14The respondent seeks a dismissal of the application in its entirety with costs payable to the respondent.
15The applicant submits that the April 2023 Tribunal decision did not make a final finding that there was no head injury sustained as a result of the accident. Rather, she argues that the Tribunal declined to assign certain whole person impairment (“WPI”) ratings because the medical records indicating a concussion were not submitted into evidence at that hearing and the applicant did not call a neurologist or a neuropsychologist to respond to the respondent’s experts’ testimony and findings.
16The applicant points to the July 2024 judicial review decision of the Divisional Court which summarizes some of the medical documentation that was not submitted at the Tribunal hearing, including a family doctor’s diagnosis of a concussion, a neuropsychological finding of a mild complicated traumatic brain injury, and a hospital specialist’s opinion that the applicant sustained a probable mild traumatic brain injury.
17Because the medical documentation noted above was not filed at the initial hearing, the applicant argues that the adjudicator did not assign WPI ratings for the impairments requiring proof of a neurological injury. She argues that this is not a final “across-the-board” finding that no head injury was sustained. A decision that turns on “missing records” and the absence of responsive expert evidence is not a final determination of the underlying medical fact that the applicant sustained a brain injury and the April 2023 decision is explicit on this point.
18In its reply submissions, the respondent submits that the adjudicator declined the ratings for concussion-related impairments precisely because the evidence – including the absence of supporting records and expert testimony – did not establish a head injury. It argues that this is a finding on the merits and not a procedural dismissal.
19In the alternative, the applicant submits that the Tribunal has discretion as per Danyluk to decide whether applying the doctrine would be fair. She submits that doing so would be unfair as relying on a determination in the analysis of Criterion 7 and applying it as a permanent factual bar to the entitlement to other benefits would be unjust. It would prevent the applicant from advancing her case of a head injury forever even though the Tribunal acknowledged that medical records suggesting a concussion were referenced in the assessments but simply not put before it at the time of the initial hearing.
20The applicant requests that the application proceed and that costs be ordered against the respondent.
21Most relevant to this preliminary issue are paragraphs 75, 76 and 81 of the Tribunal’s April 4, 2023 decision which state as follows [the emphasis is mine]:
[75] (…) It appears that certain medical records summarized in the assessment reports state that she sustained a concussion in the accident and suffered from post-concussion syndrome. The records are not in evidence. Dr. Blitzer [the applicant’s chronic pain expert] believed that she had sustained a concussion based on his review of those records, but stated that this was not the focus of his evaluation. Dr. Kiraly [the applicant’s expert psychiatrist] opined that the applicant possibly suffered from a mild neurocognitive disorder due to a traumatic brain injury and multiple etiologies. However, it is unclear how the symptoms he identified meet the diagnostic criteria for this disorder, and he relied on one of the medical records not in evidence. Dr. Yahmad [the respondent’s neurology expert] and Dr. Tuff [the respondent’s expert neuropsychologist] opined that the applicant did not suffer from a neurological impairment due to the accident. As a neurologist and a neuropsychologist, respectively, this issue falls squarely within their areas of expertise. The applicant did not call an expert neurologist or neuropsychologist who disagreed with their conclusions.
[76] Because the applicant does not claim nor does the evidence show that she sustained a neurological injury, a WPI rating for a sleep disorder is not available under this section of the AMA Guides. Sleep disorders caused by mental or behavioural disorders, pain, and impairments of the respiratory system are assessed in different chapters.
[81] I find that no WPI rating should be assigned under this category. The analysis is the same as for sleep disorders. Section 4.1b applies to impairments caused by a neurological injury. The applicant does not allege that she sustained such an injury, nor does the evidence show that she did. Cognitive issues caused by a mental or behavioural disorder or other impairments are assessed under different chapters of the AMA Guides.
The doctrine of res judicata applies to the present application
22Pursuant to Danyluk, for res judicata to apply, the respondent must first establish that the three preconditions have been met. These preconditions are whether the same question has been decided, whether the decision was final, and whether the parties are the same in both actions.
23The parties do not dispute that they are the same parties as those in the Tribunal’s initial decision in April 2023. I will therefore focus my analysis on whether the question is the same and whether the decision was final.
a. The question is the same
24The respondent submits that the question addressed in the initial April 2023 decision is the same as the one in the second application: whether the applicant sustained a head injury or TBI from the accident. It argues that this was decided in the prior proceeding and addressed in paragraphs 75 to 81 of that decision. It argues that the Tribunal found no such injury and rejected the applicant’s evidence of a concussion or mild TBI based on the clinical notes and records, imaging and expert testimony.
25The respondent submits that this finding was essential as it directly informed the WPI ratings under Criterion 7 and assigned no ratings for sleep/mental disturbances absent a head injury as well as the impairment levels under Criterion 8. It argues that Criterion 4 explicitly requires proof of a TBI and without a TBI, Criterion 4 cannot be met. It states that whether a head injury occurred was central to the CAT determination under Criteria 7 and 8 and this was decided in the negative in the prior decision.
26The applicant submits that it was not the same question but rather, the Tribunal in the prior application made findings regarding WPI ratings in the context of its determination for CAT under Criteria 7 and 8. The Tribunal decided only that, based on the evidence submitted in the prior application, certain WPI ratings that require a neurological injury could not be substantiated because the concussion records were not in evidence and the applicant did not call a neurologist or neuropsychologist to rebut the respondent’s experts’ testimony. She argues that this is not the same legal or factual question as a general finding that no head injury was sustained.
27I agree with the respondent. In Danyluk (para. 54), once a material fact is found to exist (or not to exist), the same issue cannot be relitigated in subsequent proceedings between the same parties. Here, the prior decision considered the Criterion 7 WPI ratings each party’s expert assigned for various impairments. For two of these ratings (sleep disorder and mental status disturbances), the Tribunal rejected the ratings on the basis that the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“the Guides”) require that the impairments be caused by a neurological injury, and as per the April 2023 decision, the adjudicator found that the evidence did not show that she sustained a neurological injury. This, in my view, is a material fact.
28In the applicant’s current application, she claims a CAT impairment under Criterion 4. Pursuant to the Guides, to be found CAT under Criterion 4 the applicant must first prove that she sustained a TBI as a result of the accident. A TBI is a neurological injury.
29I therefore find that the same question, being whether the applicant sustained a neurological injury or TBI, was decided in the decision of April 2023. As the determination of a CAT under Criterion 4 requires that the applicant sustain a TBI caused by the accident, it would be untenable for the applicant to satisfy the requirements of a CAT under Criterion 4 as per the April 2023 decision of the Tribunal.
b. The April 2023 decision was final
30I find that the April 2023 decision was final. The applicant sought a reconsideration of the April 2023 decision (dismissed on July 12, 2023), a judicial review (dismissed July 11, 2024), and sought leave to appeal which was also refused by the Court of Appeal. The applicant took no further steps after leave was refused.
31The applicant exhausted her appeals. The decision was therefore final.
32In summary, when applying the principles set out in Danyluk, I find that the doctrine of res judicata (issue estoppel) applies to the finding of whether the applicant sustained a neurological impairment/TBI. Issue estoppel is a branch of res judicata which precludes the relitigation of issues previously decided in another proceeding (CUPE, para. 23). I find that the prior adjudicator’s finding that the applicant did not sustain a neurological impairment/TBI as a result of the accident is a material fact as specified in Danyluk and the decision on this issue is final. Issue estoppel applies.
Res judicata is not waived
33The Supreme Court of Canada in CUPE provides discretion to waive res judicata where an adjudicator finds that the first proceeding is tainted by fraud or dishonesty; where fresh, new evidence is submitted that was previously unavailable and that would conclusively impeach the original results; and when fairness dictates that the original result should not be binding in the new context. The Supreme Court stated in Danyluk that this consists of taking into account the entirety of the circumstances and considering whether the application of issue estoppel in the particular case would work an injustice (at para. 80).
34The applicant submits that it would be unfair to rely on the determination in the analysis of Criterion 7 and to apply it as a permanent factual bar to the entitlement to other benefits. She argues that this would prevent her from advancing her case of a head injury forever even though the Tribunal acknowledged that medical records suggesting a concussion were referenced in the assessments but simply not put before it at the time of the initial hearing. She points to the Divisional Court’s decision which notes the available evidence including a family doctor’s diagnosis of a concussion, a neuropsychological finding of a mild complicated TBI, and a hospital specialist’s opinion that the applicant sustained a probable mild traumatic brain injury.
35I decline to use my discretion to waive res judicata for the following reasons. First, there are no allegations that the first hearing was tainted by fraud or dishonesty.
36Secondly, the evidence the applicant points to (diagnosis of concussion, finding of mild complicated TBI, and specialist’s opinion) is not fresh, new evidence. This is evidence the applicant had available and could have submitted to the Tribunal in her prior application but did not do so. The applicant has not pointed me to any other evidence that was not available at the time of her first hearing which would conclusively impeach the original decision that she did not sustain a neurological injury/TBI.
37Thirdly, I am not persuaded that it would be unfair to apply res judicata in this context. I find that the applicant is attempting to relitigate the finding of a neurological injury/TBI which is precisely what the doctrine of res judicata is aimed at preventing. Parties are required to put their best foot forward to establish truth of their allegations when first called upon to do so. Once an issue is decided, it should not be relitigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided (Danyluk, para. 18).
38In the prior proceeding, the applicant had access to the evidence she points to today and could have submitted it at the hearing. The applicant also could have called an expert neurologist and/or neuropsychologist to challenge the respondent’s experts’ evidence. She chose not to do either. The applicant was represented by counsel for her first application and is represented by the same counsel in this subsequent application. In my view, to waive res judicata at this time would result in the relitigation of an issue that has already been determined on its merits. On this point, I note the finding of the Divisional Court at para. 44 of its decision to be relevant:
…[t]he Adjudicator’s determination was based on the evidence before him: [the applicant] did not call an expert to respond to the opinions expressed by Drs. Yahmad and Tuff, that there was no evidence of concussion or brain injury. Those opinions were based, in part, on the evidence given by [the applicant] that she did not recall hitting her head, the accident was relatively minor – the airbags did not deploy – the diagnostic imaging, including a CT scan, MRI, and X-ray, which were normal, and the lack of evidence that [the applicant] had lost consciousness at the scene.
39For these reasons, I decline to exercise my discretion to waive res judicata.
Abuse of process need not be considered
40As per the Supreme Court of Canada in CUPE, abuse of process is applied to preclude relitigation in circumstances where the strict requirements of issue estoppel are not met, but where allowing litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.
41As I have found that issue estoppel applies to the current application, there is no need to consider whether the application should be dismissed on the basis of abuse of process.
No costs are awarded
42Rule 19.5 of the Rules sets out the relevant factors that the Tribunal must consider in deciding whether to award costs and the amount of costs to be ordered. These factors include: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal; whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.
43The respondent submits that pursuing re-litigation of a claim previously decided in the Tribunal’s April 2023 decision, its reconsideration decision and the Divisional Court’s decision constitutes unreasonable and vexatious conduct as it undermines finality, wastes Tribunal resources, and prejudices the respondent by forcing it to defend a settled matter. The respondent points to the $2,000.00 cost award ordered against the applicant in the previous application because of unreasonable conduct. The respondent submits that if the application is dismissed, a cost award of $1,000.00 should be ordered against the applicant for the seriousness of the misconduct and its interference with efficient processes.
44The applicant submits that the respondent’s conduct and decision to request the dismissal of the application was unfair to her and it strikes at the heart of the Tribunal’s integrity. She argues that the respondent is a sophisticated insurer that framed the issue being that a final decision regarding her head injury had already been decided, knowing this was not the case. She submits this was an effort on the part of the respondent to turn the Tribunal into an unwitting accessory to a misrepresentation of law and fact and an attempt to deprive a CAT-injured applicant her right to have her case adjudicated on the merits. She seeks the maximum cost award of $1,000.00.
45I find that neither party’s conduct amounts to unreasonable, frivolous, vexatious or bad faith conduct. The applicant filed her application and the respondent raised a preliminary issue, all of which is permitted pursuant to the legislation and the Rules. No costs will be awarded.
ORDER
46For all the above reasons, I find:
a. The applicant is barred from proceeding with her application by the doctrine of res judicata. b. No costs are awarded. c. The application is dismissed.
Released: November 24, 2025
Trina Morissette Vice-Chair