Licence Appeal Tribunal File Number: 25-005728/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:
Kevin Orme
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Gavin Cosgrove, Counsel
For the Respondent:
Nathan Tischler, Counsel
HEARD:
In writing
OVERVIEW
1Kevin Orme, the applicant, was involved in an automobile accident on May 29, 2018, and sought benefits from TD General 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 his application by the doctrine of res judicata?
RESULT
3The applicant is barred from proceeding to a hearing of his application.
BACKGROUND
4The applicant filed a first application with the Tribunal on January 19, 2022, under Tribunal File Number 22-000591/AABS. The matter was set down for a written hearing on July 14, 2023. On January 9, 2024, the Tribunal released its decision in the matter.1
5The decision notes that prior to the hearing, the applicant was designated catastrophically impaired (“CAT”). It also notes that the applicant moved from his primary residence to a farm on Prince Edward Island.
6The issues in dispute in the first application included three expense forms (OCF-6), a treatment plan (OCF-18), and interest. Relevant to this preliminary issue hearing, the treatment plan dated February 25, 2022, in the amount of $277,895.75, was prepared by an occupational therapist (“OT Payton”) and proposed several assistive devices to aid in the applicant’s recovery and return to the activities of normal living. The treatment plan listed the following items:
i. Documentation $200.00;
ii. Preparation $119.92;
iii. John Deere Compact Utility Tractor $51,523.77;
iv. JCB Teleskid 3TS-8w (includes telescopic jib and pallet fork) $146,107.50;
v. Snow blower $16,400.00;
vi. Wood splitter conveyor $13,700.00;
vii. Kubota RTB X1100 $26,252.55;
viii. Portable fuel tank $1,899.00;
ix. Noise cancellation headphones $355.56;
x. Starlink Wi-Fi equipment $821.10;
xi. Starlink Wi-Fi monthly cost ($148.35 x 12 months) $1,780.20; and
xii. Tidal Fit Ep 14 electrical work + concrete $11,168.60.
7The Tribunal found that the applicant was not entitled to the treatment plan. The applicant did not seek reconsideration of the decision and did not avail himself of the statutory right of appeal that was available to him.
8On April 29, 2025, the applicant filed the current application. The sole issue in dispute in this application is whether the applicant is entitled to $16,900.00 for an Eastonmade STK 24 Conveyor (a wood splitter conveyor), proposed by Elm Grove Centre in a treatment plan submitted December 13, 2024.
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 decision released January 9, 2024 found that the applicant was not entitled to any of the issues listed in the treatment plan, including the cost of the wood splitter conveyor. The decision states that the applicant did not meet his burden to show that the funding for a wood splitter conveyor was reasonable and necessary, irrespective of the specifics of the model and price. Pursuant to Danyluk, the respondent argues that the applicant was required to put his best foot forward to establish his entitlement and failed to do so. It argues that the applicant has now raised the same question as the one decided in the prior decision. The decision of January 9, 2024 is final, and the parties are the same. The application should be barred on the basis of res judicata.
12In the alternative, the respondent submits that the applicant’s attempt to relitigate his entitlement to another wood splitter conveyor is an abuse of process and the Tribunal should uphold the principle of finality by preventing him from bringing this new application, particularly as he had not presented any compelling new evidence that he could not have obtained prior to the first decision. A re-hearing of his entitlement would undermine the principle of finality and lead to a waste of the Tribunal’s limited resources. It would also lead to potential inconsistent results, undue costs, and inconclusive proceedings.
13The respondent also seeks costs in the amount of $1,000.00 on this preliminary issue.
14The applicant submits that the treatment plan in the current application is materially different from the one submitted in the prior application. It consists of a distinct entitlement issue and is supported by new evidence. He argues that the prior application concerned a wood splitter conveyor at a cost of $13,700.00 versus the Eastonmade STK 24 Conveyor in the current application at a cost of $16,900.00. He explains that the treatment plan in the current application features a different conveyor model and is supported by new clinical evidence and rationale from occupational therapist, Chad Barkhouse (“OT Barkhouse”), which was not available at the time of the previous hearing.
15The applicant further submits that the January 2024 decision was non-determinative regarding future claims for a conveyor, being specific to the evidence presented at that time. The current application presents new professional evidence and a different treatment plan, raising a distinct entitlement issue. He argues that the shift in both clinical context and therapeutic objectives underscores that the latter plan is not a repetition of the former, but rather a distinct and updated assessment tailored to the applicant’s current impairments and needs.
16The applicant argues that applying the doctrine of issue estoppel here would result in unfairness by denying him the opportunity to pursue necessary medical equipment. The respondent would not suffer prejudice from a hearing on the merits while the applicant would be deprived of essential treatment. The application is not vexatious or an abuse of process, as it is based on new evidence and a different professional judgment, not an attempt to relitigate the same issue. He submits that the preliminary issue should be dismissed, and the application should proceed to a hearing on its merits.
17Most relevant to this preliminary issue are the following paragraphs of the Tribunal’s January 9, 2024 decision:
46The applicant submits that these items are assistive devices that support his reintegration into society. He argues that his treatment plan should be “give greater weight” than the denial letter of the insurer, largely because this plan was accompanied by a 12-page Occupational Therapy Devices Submissions Letter, also completed by [OT Payton]. In this document, [OT Payton] detailed each recommended item and provided support for their therapeutic purpose in relation to the applicant’s accident-related injuries and sequelae. The applicant argues that this letter is preferable to the respondent’s denials, which have “no basis in medicine”.
51First, the applicant is not entitled to items 3, 8, 11, and 12 – the John Deere tractor, portable fuel tank, and Starlink internet installation and monthly subscription fees – as it is clear from the invoices and the occupational therapist support letter that these items were incurred before the submission of the treatment plan.
54Second, the applicant is not entitled to the remainder of the items (1, 2, 4, 5, 6, 7, 9, 10 and 13) as he has not met his onus and demonstrated them to be reasonable and necessary. While the applicant references the occupational therapist support letter that accompanied the treatment plan, he does so in its totality; he does not direct me to specific evidence within that letter supporting his argument that these items should be deemed reasonable and necessary. An applicant cannot simply submit evidence and leave it up to the adjudicator to connect the dots and make his case. The applicant must explicitly explain why the evidence is supportive of his case. Here, he has failed to do so.
55In addition, a review of the occupational therapy letter reveals another problematic issue that undermines the applicant’s case regarding the remaining items listed in the treatment plan. While [OT Payton] conducted her own virtual occupational therapy sessions, her letter seems to have been significantly based on a number of reports that the applicant has not provided in his submissions for this hearing.
56[OT Payton] references: a catastrophic executive summary completed by Dr. Ben Meikle dated June 23, 2021; an undated occupational therapy report completed by Stephanie McHugh based on the applicant’s prior residence in Ontario; a report from Dr. Gammon, orthopedic surgeon, dated September 17, 2019; an occupational therapy situational assessment completed by Barbara Moroney and dated November 6, 2020; and the results of a “collateral interview” with the applicant’s wife dated February 18, 2022. Yet the applicant did not include these reports in his written submissions, rendering it impossible for me to assess these documents.
60Accordingly, the applicant is not entitled to this treatment plan, nor interest.
The doctrine of res judicata applies to the present application
18Pursuant 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.
19The parties do not dispute that they are the same parties as those in the Tribunal’s initial decision in January 2024. 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
20The respondent submits that the first application was decided on its merits. The adjudicator held that the applicant had not met his burden of proof to show that any of the items listed in the OCF-18, including the wood splitter conveyor, were reasonable and necessary as a result of the accident. It argues that the fact that the issue of the applicant’s entitlement to a wood splitter conveyor was decided in combination with other medical devices does not make the decision “not truly based on the merits”.
21The applicant submits that the Tribunal did not evaluate the proposed wood splitter on its individual merits. While the decision references the treatment plan as a whole, several distinct devices were dismissed collectively on the basis that the applicant had not sufficiently directed the Tribunal to specific supporting evidence. This amounted to a blanket denial; not a merits-based analysis. The applicant notes in particular that the wood splitter raised unique considerations related to the applicant’s CAT and capacity to perform pre-accident tasks. However, the Tribunal’s reasoning did not address these distinct therapeutic purposes. Instead, the wood splitter was grouped with unrelated items such as internet services and noise-cancelling headphones, despite clear statutory language in section 15 and 16 of the Schedule requiring that each good or service be assessed for reasonableness and necessity. By failing to conduct an individualized analysis, the Tribunal effectively disposed of the wood splitter claim without determining its substantive merits.
22I 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 Tribunal found in its January 9, 2024 decision, that the treatment plan – which included the wood splitter conveyor – was not reasonable and necessary.
23The applicant argues that the Tribunal failed to conduct an individualized analysis of each of the items listed in the treatment plan and therefore, it did not determine entitlement to the wood splitter conveyor on its merits. I do not accept this argument. As the adjudicator reasoned in its January 2024 decision, the applicant failed to direct him to specific evidence that would support his claim that the items were reasonable and necessary. This was the applicant’s burden to prove, and he did not satisfy it. The Tribunal therefore found that the wood splitter conveyor, as well as the other items listed, were not reasonable and necessary. This, in my view, is a material fact decided on its merits.
24The applicant relies on several decisions of the Tribunal and claims that bringing forward the same type of treatment plan does not automatically engage res judicata because the Schedule provides for ongoing entitlement to medical and rehabilitation benefits with no limit on the number of OCF-18s that can be submitted. He also argues that the wood splitter conveyor claimed in the current application is materially different from the one submitted in the prior application.
25First, I am not bound by these decisions. Second, aside from the model and cost of the wood splitter conveyors, the applicant has not submitted any information that the two items serve different functions. I find that the applicant is attempting to split hairs between entitlement to a wood splitter conveyor at a cost of $13,700.00 and a specific wood splitter conveyor (the Eastonmade STK 24 Conveyor) at a cost of $16,900.00. I am not persuaded that they are materially different.
26I find that the first precondition - whether the question is the same - has been established.
b. The January 2024 decision was final
27The applicant had the opportunity to request reconsideration of the January 2024 decision but did not do so. He also did not avail himself of the statutory right of appeal that was available to him. The decision is therefore final.
28In 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 is entitled to a wood splitter conveyor. 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 was not entitled to the items listed in the OCF-18 – which included the wood splitter conveyor – is a material fact as specified in Danyluk and the decision on this issue is final. Issue estoppel applies.
Res judicata is not waived
29The 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).
30The applicant submits that he relies on fresh, new evidence that he qualifies as “clinical evidence and rationale” provided by OT Barkhouse. He submits that res judicata should be waived.
31In the OCF-18 dated October 16, 2024, OT Barkhouse notes that the applicant’s impairments affect his ability to carry out his tasks of employment as well as his activities of normal life. He explains that the applicant owns a homestead as part of his everyday life (pre- and post-accident) which requires him to participate in activities such as caring for the animals and maintenance of the homestead. He identifies the goals as pain reduction and energy conservation. Although the applicant submits that “new clinical evidence and rationale” of OT Barkhouse supports the current application, aside from the OCF-18, the applicant did not submit any other documentary evidence of OT Barkhouse, such as a report. In fact, the applicant did not submit documentary evidence in this preliminary hearing. The OCF-18 was part of the respondent’s evidence and if it was originally accompanied by a report of OT Barkhouse, this report was not included. It is unclear if the applicant was referring to additional information prepared by OT Barkhouse, such as an additional report, when he submitted that there is “new professional evidence” that is “tailored to the applicant’s current impairments and needs”.
32The OCF-18 dated February 25, 2022, prepared by OT Payton and claimed in the first application, notes that the applicant’s impairments affect his ability to carry out his tasks of employment as well as his activities of normal life. She identifies the goals of the treatment plan being “devices and products to aid in recovery”. The OCF-18 states “please refer to OT Letter” but her letter was not submitted in the context of this preliminary issue hearing.
33I fail to see how OT Barkhouse’s identification of the goals of pain reduction and energy conservation and the short explanation he provides in the OCF-18 consists of “new clinical evidence and rationale” or even, in the context of waiving res judicata, how this qualifies as new, fresh evidence that was previously unavailable and that would conclusively impeach the original results. On this point, I note that the January 2024 decision states specifically that OT Payton provided a 12-page Occupational Therapy Devices Submissions Letter and that this letter referenced a CAT executive summary, an undated occupational therapy report, a report from an orthopaedic surgeon, an occupational therapy situational assessment, and a collateral interview with the applicant’s wife.
34I therefore 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.
35Secondly, the evidence the applicant points to (OT Barkhouse’s “new clinical evidence and rationale”) in my view, does not consist of fresh, new evidence especially since there was a significant amount of evidence available at the first hearing which appears to have been much more detailed. Furthermore, the applicant does not explain how OT Barkhouse’s OCF-18 is distinctive from the other evidence previously obtained.
36Thirdly, 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 his claim for a wood splitter conveyor 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).
37For these reasons, I decline to exercise my discretion to waive res judicata.
Abuse of process need not be considered
38As 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.
39As 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.
The respondent’s request for costs is denied
40Rule 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.
41The respondent submits that it was unreasonable for the applicant to bring this application as he knew or ought to have known that the prior decision already conclusively determined his entitlement to cost of a wood splitter conveyor. It argues that the only plausible reason to have brought the application was to vex the respondent with having to respond to a previously determined issue, or to attempt to use this proceeding as a means to leverage a settlement offer from the respondent rather than to legitimately seek a hearing on the merits. The respondent adds that a cost award would discourage unreasonable and wasteful appeals that only serve to clog the Tribunal system and delay the appeals of legitimate claimants. It seeks costs in the amount of $1,000.00.
42The applicant did not make submissions regarding costs.
43I do not find that the applicant’s conduct amounts to unreasonable, frivolous, vexatious or bad faith conduct. The respondent speculates that the applicant brought forward this application to “vex” it and/or to use it as a means to achieve a settlement but has provided no evidence to substantiate this. No costs will be awarded.
ORDER
44For all the above reasons, I find:
a. The applicant is barred from proceeding with his application by the doctrine of res judicata.
b. No costs are awarded.
c. The application is dismissed.
Released: December 1, 2025
__________________________
Trina Morissette
Vice-Chair