Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 25-004036/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:
Michael Schindelheim
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Imtiaz Hosein, Counsel
For the Respondent:
Geoffrey L. Keating, Counsel
HEARD:
In writing
OVERVIEW
1Michael Schindelheim, the applicant, was involved in an automobile accident on May 2, 1997, and sought benefits from TD General Insurance Company, the respondent, pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg 403/96 (“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 ISSUES IN DISPUTE
2The first 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?
3In the alternative, is the applicant barred from proceeding to a hearing of his application because the applicant failed to dispute his denial within the 2-year limitation period?
RESULT
4The applicant is not barred from proceeding to a hearing of his application.
5The following issue is added to the issues in dispute:
i. Is the applicant entitled to costs because the respondent acted unreasonably, frivolously, vexatiously, or in bad faith?
BACKGROUND
6The applicant was 16-years old at the time of the accident. He sustained a severe brain injury as a result of the accident and was subsequently determined catastrophically impaired (“CAT”).
7The applicant filed a first application with the Tribunal on March 18, 2022, under Tribunal File Number 22-003322/AABS. The issues in dispute included retroactive attendant care benefits (“ACBs”), retroactive housekeeping and home maintenance benefits (“housekeeping”), occupational therapy services, chiropractic services, an award, and interest. The matter was set down for a 6-day videoconference hearing scheduled to commence on August 8, 2023. On September 15, 2023, the Tribunal released its decision in the matter and found that the applicant was not entitled to any of the benefits in dispute, interest, or an award, and neither party was entitled to costs. The application was dismissed (Schindelheim v. TD General Insurance Company, 2023 CanLII 4399 (ON LAT).
8On June 10, 2023, the applicant filed a request for reconsideration of the September 15, 2023 decision. Pursuant to paragraph [2] of the reconsideration decision dated December 22, 2023, the applicant sought to vary the September 2023 decision to find that he was entitled to retroactive ACBs and housekeeping benefits, the medical benefits, interest and the award. In the alternative, the applicant sought a rehearing before a different adjudicator, based on the record adduced during the initial hearing. The applicant’s request for reconsideration was dismissed (Schindelheim v. TD General Insurance Company, 2023 CanLII 122943 (ON LAT).
9The applicant appealed to the Divisional Court (“the Court”) with respect to the issue of retroactive ACBs as well as associated interest and award. No appeal was sought with respect to the disputed medical benefits, nor with respect to the issue of retroactive housekeeping benefits.
10In the midst of the appeal, the Court of Appeal released its decision in Morrissey v. Wawanesa Insurance Company, 2024 ONCA 602 (“Morrissey”) which found, in part, that there is no basis in section 42 of the Schedule for an insurer to require an insured to establish urgency, impossibility or impracticability as a condition of paying a retroactive claim for ACBs. Upon release of this decision, the parties took the opportunity to discuss Morrissey’s impact with respect to the appeal before the Court. An email from applicant’s counsel to counsel for the respondent and the Tribunal, dated September 3, 2024, stated the following:
i. We are aligned on the impact of the Court of Appeal for Ontario’s decision in [Morrissey] on this matter. We agree that [the Tribunal’s] decision and decision on reconsideration must be quashed, and the appropriate remedy is for the [Court] to remit the matter to the [Tribunal] for a new hearing, based on the record of the August 2023 hearing, with the direction that the following issues are to be tried:
Is [the applicant] entitled to retroactive [ACBs] from May 1997 to July 2021?
If [the applicant] is entitled to retroactive [ACBs], what is the quantum of his entitlement?
If [the applicant] is entitled to retroactive [ACBs], at what point in time does interest accrue on his entitlements?
If [the applicant] is entitled to retroactive [ACBs], is he also entitled to a special award pursuant to s. 10 of the [Schedule]?
11Supplementary Joint Submissions of the Parties were filed with the Court along with a draft order on consent outlining the terms agreed to above in addition to a request for costs. The Court endorsed the consent order in Court File Number DC-23-00000576-0000 on September 12, 2024. The Order reads as follows:
i. THIS APPEAL proceeded on a consent basis on September 12, 2024, at the Superior Court of Justice (Divisional Court), Osgood Hall, 130 Queen Street West, Toronto, ON M5H 2M3.
ii. ON READING THE MATERIALS FILED and consent of the parties,
THIS COURT ORDERS that the decision of Adjudicator Forbes dated September 15, 2023, reported at Schindelheim v. TD General Insurance, 2023 ONLAT 22-003322/AABS and reconsideration decision dated December 22, 2023, reported at 2023 ONLAT 22-003322/AABS are quashed.
THIS COURT ORDERS that the matter is remitted to the License Appeal Tribunal for a new hearing for the following issues to be adjudged:
(a) Is Michael Schindelheim entitled to retroactive Attendant Care Benefits from May 1997 to July 2021?
(b) If Michael Schindelheim is entitled to retroactive Attendant Care Benefits, what is the quantum of his entitlement?
(c) If Michael Schindelheim is entitled to retroactive Attendant Care Benefits, at what point in time does interest accrue on his entitlements?
(d) If Michael Schindelheim is entitled to retroactive Attendant Care Benefits, is he also entitled to a special award pursuant to s. 10 of the SABS?
- THIS COURT ORDERS that the Respondent TD General Insurance pay to the Appellant Michael Schindelheim the costs of the proceeding in the all-inclusive amount of $10,000 CAD, and that no costs are payable by or to the Respondent License Appeal Tribunal.
12On March 25, 2025, the applicant filed the current application. The issues in dispute include whether the applicant is entitled to housekeeping benefits from May 2, 1997 to date and ongoing, interest and an award.
ANALYSIS
13The 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.
14According 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.
The doctrine of res judicata does not apply to the present application
15The respondent submits that all criteria necessary for a finding of res judicata are satisfied: the Tribunal ruled that the applicant is not entitled to retroactive housekeeping benefits, hence, the same issue has been decided; the applicant opted not to appeal this portion of the decision to the Court resulting in a final decision on this issue; and the parties are the same. The respondent argues that the Order which quashes the prior decision and reconsideration decision (“the Tribunal decisions”) was made in the context of an appeal only in relation to the issue of retroactive ACBs. The issues of entitlement to retroactive housekeeping and disputed medical benefits were not before the Court. As such, the scope of the appeal and any associated quashing could only be limited to the issues that the Court considered.
16The respondent points to the correspondence between the parties surrounding the issue on appeal which focused substantially on the issue of retroactive ACBs and only minimally referenced the issue of housekeeping. The supplementary joint submissions on appeal did not make any reference to the term “housekeeping”. The respondent submits that the joint submissions on appeal confirm that the matter was to be remitted back to the Tribunal solely on the issue of ACBs along with associated interest and award. Neither party contemplated any additional grounds of appeal to be raised with respect to the issue of housekeeping benefits.
17The applicant submits that a prior decision that is quashed by a Court cannot be considered final, and thus, cannot be used to meet the preconditions for res judicata. The applicant relies on the Supreme Court of Canada decision in Singer and Belzberg v. J.H. Ashdown Hardware Co. Ltd., 1953 CanLII 66 (SCC) (“Singer”) at page 282 which states: “[t]he effect of the judgment as a bar to a subsequent action is destroyed by the order setting it aside (…) it has gone, and is as if it never had been made.”
18The applicant submits that the question of entitlement to retroactive housekeeping benefits has not been decided. He also argues that the Tribunal decisions applied the wrong legal framework based on Morrissey. A decision based on those errors cannot be said to have finally determined the question of entitlement to retroactive housekeeping benefits.
19The respondent further submits that, where there is ambiguity in the consent order and in the supporting supplementary submissions with respect to the issue of retroactive housekeeping benefits, the ambiguity should be resolved in its favour. It relies on the principle of contra proferentem and the Supreme Court’s decision in Manulife Bank of Canada v. Conlin, 1996 CanLII 182 (SCC), [1996] 3 SCR 415 (“Manulife”). Manulife states that where there is ambiguity or imprecision in a contract, the ambiguity should be resolved against the party who prepared the document. Here, the respondent submits that the applicant drafted the joint supplementary submissions and the consent order.
20The respondent further submits that contra proferentem also applies to consent orders (Horne Coupar v. Velletta & Company, 2010 BCSC 483 paras. 8-13) (“Horne Coupar”). The respondent argues that should the Tribunal find there is ambiguity, the ambiguity must be resolved in its favour and the Tribunal must find that the Tribunal decisions were only quashed in relation to the issue of retroactive ACBs.
21In my view, there is no ambiguity. In Manulife, the creditor and the principal debtor agreed to a material alteration of the terms of the mortgage agreement without the consent of the guarantor. Here, the parties discussed the language of the draft consent order and joint submissions, the respondent reviewed the language, had the opportunity to revise it, and ultimately consented to it. The Order clearly states that the Tribunal decisions “are quashed”.
22In Horne Coupar, the consent order failed to include a provision or stipulation for the deduction of fees which the Supreme Court of British Columbia concluded resulted in an ambiguity which was to be construed against the party that prepared the order. Here, the parties requested on consent and obtained an order from the Court quashing the Tribunal decisions. There is no ambiguity in this regard. In any event, the respondent has not persuaded me that the doctrine of contra proferentem applies to consent orders because, although instructive, the Tribunal is not bound by a decision of the Supreme Court of British Columbia and the respondent has not pointed to any other caselaw to support this argument.
23I find that the preconditions to establish res judicata have not been satisfied. I agree with the applicant that the Tribunal decisions being “quashed” – as opposed to a portion of the Tribunal decisions being quashed – is likened to the decisions having never been made. Although the Order returns the matter to the Tribunal and specifically addresses the questions that are to be determined with respect to entitlement to retroactive ACBs, it is silent on retroactive housekeeping benefits and all other matters decided in the quashed Tribunal decisions. As a result, the question as to the applicant’s entitlement to retroactive housekeeping benefits has not been determined and therefore, no final decision on the merits of this issue has been reached.
24The language used in the Order results in the remaining issues addressed in the Tribunal decisions being left in limbo. In my view, the only process available for the applicant to address this void is to file a new application with the Tribunal, which the applicant has done.
25I find that the respondent is attempting to amend the Order to now address the void. The draft consent order was filed in the appeal process with both parties having the benefit of legal representation. The Court ordered that the decisions be quashed. It is not within the Tribunal’s jurisdiction to disregard the Court’s Order or to amend it.
26In summary, as stated by the Supreme Court in Singer (at page 282), “I am at a loss to understand how any matter can be held to be res judicata by virtue of a judgment which once existed but has since been validly set aside.” As long as the consent order quashing the Tribunal decisions remains unreversed, the issue of entitlement to retroactive housekeeping benefits has yet to be determined. I therefore find that res judicata does not apply.
The 2-year limitation period does not apply to the current application
27Section 56 of the Schedule provides that an application to the Tribunal in respect of a benefit shall be commenced within two years after the respondent’s refusal to pay the amount claimed. However, pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LAT Act”), the Tribunal has the authority to extend the limitation period beyond the two-year mark outlined by section 56 of the Schedule.
28The respondent submits the applicant submitted his disability certificate in August 2022. A notice of denial for the applicant’s claim for retroactive housekeeping benefits was provided on November 14, 2022. The respondent submits that the denial satisfies all relevant notice requirements pertaining to the limitation period: the letter contained straight-forward language directed towards an unsophisticated person; it outlines the dispute resolution process and the relevant time limits that govern the process; and it provides valid reasons for the denial. The respondent therefore argues that the application for retroactive housekeeping benefits, filed with the Tribunal on March 25, 2025, was filed beyond the two-year limitation period.
29The applicant submits that the denial notice of November 14, 2022 advanced three conflicting positions. The letter states: the applicant was not entitled to retroactive housekeeping; further information was required to “consider payment”; and benefits were suspended for non-attendance at an examination under oath. The denial notice did not satisfy the requirements of section 56 of the Schedule.
30In addition, the applicant submits that his claim for retroactive housekeeping benefits was included in his previous application (I note that the issue of retroactive and ongoing housekeeping benefits were added to the March 2022 application at the case conference held on January 12, 2023). That application was filed within two years of the denial. That application proceeded to a decision of the Tribunal as well as a reconsideration decision which were subsequently quashed by the Court. He argues that the respondent knew of the dispute since 2022 and the current application should be treated as a re-filing of his claim for retroactive housekeeping benefits.
31I agree with the applicant that he claimed retroactive housekeeping benefits within his application in Tribunal File Number 22-003322/AABS. As discussed above, the Court’s Order of September 12, 2024 quashed the decision and the reconsideration decision of the Tribunal which considered the claim. I am in agreement with the applicant that, although in limbo, the claim was preserved and a fresh filing of this application was required to have the issue proceed to a decision on the matter.
32Ultimately, the applicant disputed the denial in his previous application. The Court’s Order quashed the Tribunal decisions but did not quash the applicant’s claim which was filed within two years of the denial. In these circumstances, I find that the applicant filed his application within two years of the denial.
The issue of costs is added to the application
33Rule 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.
34In his responding submissions, the applicant seeks costs. He submits that it was unreasonable for the respondent to ask the Tribunal to give effect to findings the Court has quashed, it was frivolous to advance a limitation defence, it was vexatious to force a CAT impaired applicant to fight a preliminary issue that has no prospect of success, and it is bad faith to use the Tribunal’s process to delay payment of benefits that the respondent knows have been in dispute, continuously, since 2022. The applicant requests costs in the amount of $1,000.00 for the respondent’s serious misconduct. He argues that this has undermined the Court’s order and has contributed to clogging at the Tribunal with a baseless preliminary issue and an attempt to delay justice. This, he argues, has caused further costs and stress while the respondent gains a tactical pause at no risk to itself.
35The respondent did not specifically address the issue of costs in its reply.
36Rule 19.1 of the License Appeal Tribunal Rules, 2023 (“Rules”) provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad fait. Rule 19.2 allows a request for costs to be made any time before a decision is released.
37As I have determined that the application will be proceeding to a hearing on the substantive issues, I order that the following issue be added to the issues in dispute:
i. Is the applicant entitled to costs because the respondent acted unreasonably, frivolously, vexatiously, or in bad faith?
38I find that adding the issue of costs to the application would be more appropriately dealt with by the hearing adjudicator as this would allow both parties to make fulsome submissions.
ORDER
39For all the above reasons, I find:
a. The applicant is not barred from proceeding to a hearing of his application.
b. The following issue is added to the issues in dispute:
i. Is the applicant entitled to costs because the respondent acted unreasonably, frivolously, vexatiously, or in bad faith?
Released: December 15, 2025
__________________________
Trina Morissette
Vice-Chair