Poonammah Samaroo v. The Commonwell Mutual Insurance Group, 2025 CanLII 135580

Citation: Samaroo v. The Commonwell Mutual Insurance Group, 2025 ONLAT 25-004098/AABS - PI

Licence Appeal Tribunal File Number: 25-004098/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:

Poonammah Samaroo

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant:

Michael Hazan, Counsel

For the Respondent:

Cecil Jaipaul, Paralegal

HEARD:

In writing

OVERVIEW

1Poonammah Samaroo, the applicant, was involved in an automobile accident on June 3, 2018, and sought benefits from The Commonwell Mutual Insurance Group, 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?

3In the alternative, is the applicant barred from proceeding to a hearing for post-104-week income replacement benefits (“IRBs”) because the applicant failed to dispute her denial within the two-year limitation period?

RESULT

4The doctrine of res judicata does not apply to the current application.

5The current application was filed within the two-year limitation period.

6The relief for costs in the amount of $250.00 payable to the respondent, is denied.

7The application shall proceed to a hearing on the substantive issues as previously scheduled.

BACKGROUND

8Following the accident on June 3, 2018, the applicant received accident benefits from the respondent. Part of these benefits included IRBs in the amount of $400.00 per week from June 10, 2018 until January 19, 2020. The respondent stopped payment of the IRBs on January 19, 2020 upon receipt of a section 44 insurer’s examinations (“IE”) which found the applicant did not suffer a substantial inability to perform the essential tasks of her employment.

9The applicant disputed the respondent’s denial through a first application filed with the Tribunal on January 10, 2022 under Tribunal File Number 22-000240/AABS. The issues in dispute at the time included whether the applicant was entitled to an IRB in the amount of $400.00 per week from January 19, 2020 to June 3, 2020 (i.e., pre-104 week IRBs). Other issues in dispute included medical/rehabilitation benefits, an award, and interest.

10The matter was set down for a written hearing scheduled for January 12, 2024. In a decision released September 17, 2024, the Tribunal found, relevant to this preliminary issue, that the applicant was entitled to IRBs in the amount of $400.00 per week for the period of January 19, 2020 to June 3, 2020, plus interest; see: Samaroo v. The Commonwell Mutual Insurance Group, 2024 CanLII 88878 (ON LAT).

11On October 7, 2024, the respondent requested a reconsideration of the Tribunal’s decision, in part, arguing that the Tribunal erred in law and fact in finding that the applicant was entitled to an IRB as a result of her psychological impairment. The Tribunal released its reconsideration decision on January 14, 2025, upholding its finding that the applicant was entitled to IRBs, see: Samaroo v. The Commonwell Mutual Insurance Group, 2025 CanLII 1812 (ON LAT).

12In a letter dated March 3, 2020, the respondent fulfilled its obligation in accordance with the decision and provided the applicant its calculations for the total amount of IRBs, plus interest. The calculations included the total period of January 19, 2020 to March 4, 2025; however, the calculations showed that payments for IRBs were limited to the period of pre-104 IRBs being from January 19, 2020 to June 3, 2020. The amounts payable amounted to $7,828.57 plus $2,152.73 (interest) for a total amount of $9,981.30. For the remainder of the period, being June 4, 2020 to March 4, 2025 (the post-104 IRB period), no payments would be made.

13On March 11, 2025, the applicant corresponded with the respondent asking about the status of her post-104 IRBs.

14On March 12, 2025, the respondent denied that any post-104 IRBs were payable to the applicant. The denial explained in part:

[The applicant] and her representative(s) disputed the Pre-104 test “substantial inability to perform the essential tasks of the employment in which she was employed at the time of the accident.”

[The applicant] and her representative(s) did not dispute the Post-104 test “suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

Our stoppage letter was dated January 15, 2020. [The applicant] and her representative(s) had two years to dispute the stoppage. As we are more than four (sic) (5) years since our determination / denial. There is no entitlement to the Post-104 [IRBs].

15On March 26, 2025, the applicant filed the application within. The issues in dispute in this current application include whether the applicant is entitled to an IRB in the amount of $400.00 per week from June 4, 2020 to date and ongoing (i.e., post-104 week IRBs), an award, and interest.

ANALYSIS

The doctrine of res judicata does not apply to the current application

16The 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.

17According 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.

18The respondent submits that the issue of IRBs has already been determined by the Tribunal’s prior decision in September 2024 and its reconsideration decision in January 2025, therefore res judicata applies. The prior application questioned the applicant’s entitlement to IRBs which, it argues, is the same question in this current application. The respondent points to paragraph [34] of the prior decision which notes that the applicant’s evidence included section 25 assessments that opined on both pre- and post-104 week IRBs. In addition, the respondent notes that at paragraph [21] of the prior decision, the Tribunal noted that all of the applicant’s section 25 assessments were conducted well after the period in dispute. It adds that the prior decision was based on the merits and was a final decision, which therefore satisfy the preconditions set out in Danyluk.

19The applicant submits that the question before the Tribunal in the prior application was whether the applicant was entitled to pre-104 week IRBs. This current application seeks a determination as to whether she is entitled to post-104 week IRBs. She argues that the Schedule sets out different applicable legal tests for pre- and post-104 IRBs and the question as to whether the applicant is entitled to post-104 IRBs has yet to be determined. The only Danyluk precondition met for the doctrine of res judicata to apply is that the parties are the same in both proceedings.

20I agree with the applicant. Although evidence submitted during the hearing of the prior application included applicant’s expert opinions on her entitlement to post-104 week IRBs, the questions grappled by the Tribunal in its prior decision did not include entitlement to post-104 week IRBs which has its own legal test set out in the Schedule. I note that the respondent itself recognized this distinction in its letter to the applicant on March 12, 2025 where it based its denial partly on the fact that the applicant had disputed her entitlement to pre-104 week IRBs and not her entitlement to post-104 IRBs. The respondent also recognized in its letter that different legal tests apply for entitlement to each.

21I find that the question decided in the prior decision is not the same as the one to be determined here. The respondent has therefore not satisfied me that the Danyluk preconditions have been met. Res judicata does not apply.

The current application was filed within the two-year limitation period

22Section 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.

23The respondent submits that it provided a proper denial of the IRB on January 15, 2020 which triggered the two-year limitation period. The applicant’s prior application was filed with the Tribunal on January 10, 2022, just prior to the two-year limitation period which was January 19, 2022. In the prior application, the respondent argues that the applicant only disputed IRBs from January 19, 2020 to June 3, 2020. At no time, despite having the option of claiming ongoing entitlement, did the applicant seek to amend her claim to address entitlement to post-104 week IRBs. It argues that she made a clear and proper decision to limit the scope of her claim.

24The respondent further submits that entitlement to pre-104 week IRBs is not a guarantee to entitlement to post-104 IRBs. Here, the applicant waited until after the Tribunal’s decision in September 2024 and reconsideration decision in January 2025 – over five years after the notice of denial – to first indicate that she was claiming post 104-week IRBs. Such a delay, it argues, is inconsistent with the obligation to pursue claims diligently, in good faith and to not try to seek a windfall. The respondent asserts there is no provision in the Schedule or the Insurance Act, R.S.O. 1990, c. I.8 that allows an insured to reapply for a specified benefit (including IRBs). It is well settled that the only remedy for an insured is to appeal an IRB termination – a single event – within two years. The denial dated January 15, 2020 was a valid termination of benefits and the two-year limitation period ended on January 15, 2022. It relies on Wadhwani v. State Farm Mutual Automobile Insurance Company, 2013 ONCA 662 and Haldenby v. Dominion of Canada General Insurance Co., 2001 CanLII 166303 (ON CA), 2001 CanLII 16603 (ON CA), 55 O.R. (3d) 470 (“Haldenby”).

25The applicant submits that the prior application marked her intention to dispute the respondent’s denial of her entitlement to pre-104 week IRBs and she argues that there is no requirement to indicate “ongoing” IRBs, especially when the post-104 week IRB test is more stringent. The applicant submits that the respondent is relying on a denial that pre-dates the two-year mark of the claim and is ignoring the Tribunal’s decision that found the January 15, 2020 denial was “an invalid one”.

26The applicant submits that the true limitation period for the applicant to dispute the respondent’s post-104 week IRBs denial is March 12, 2027 as the first communicated denial of this specified benefit was made on March 12, 2025. She argues that to rely on the January 15, 2020 denial as a denial for post-104 week IRBs would result in insurers not fulfilling their obligation to continuously adjust the file and to not properly assess an insured for post-104 IRB entitlement as discussed in Baskaran v. Co-operators General Insurance Company, 2020 CanLII 98730 (ON LAT).

27The applicant further relies on Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 and submits that when an applicant’s benefits are reinstated, the limitation period can only be triggered when they are validly terminated again. She submits that the payment of the pre-104 week IRBs on March 4, 2025 equates to a reinstatement of that benefit.

28The applicant submits that the Tribunal found in its September 2024 decision that the respondent’s January 15, 2020 denial “was an invalid one”. There is no reference in the prior decision where the Tribunal made such a finding. I infer from the applicant’s submission that she means the Tribunal found that the applicant was entitled to IRBs contrary to the reasons stated in the denial of January 15, 2020.

29I agree with the respondent that a claim for post-104 week IRBs is not a claim for a new benefit, and I accept the respondent’s assertion that the Court of Appeal has determined there are no separate and distinct limitation periods for pre-104 week IRBs and post-104 week IRBs. The Schedule contemplates only one limitation period which begins to run where the insurer refuses to pay the amount claimed by the insured, or, in the alternative, where the insurer refuses to pay further benefits (Haldenby, at para. 23). As the Court of Appeal explained, such an interpretation would unreasonably controvert the systemic need for finality, certainty and the principle of diligence (Ibid, at para. 36).

30I therefore find that the two-year period for the applicant to have appealed the respondent’s denial for IRBs – for both pre-104 week IRBs and post-104 week IRBs – would have been triggered by the respondent’s denial provided on January 15, 2020.

31The applicant filed her first application with the Tribunal on January 10, 2022, within the two-year limitation period. The respondent contends that at the time the applicant filed her first application, she was within the period of her post-104 week IRBs but she failed to dispute her entitlement to ongoing IRBs. Instead, the respondent argues that the applicant first disputed her entitlement to post-104 week IRBs in the current application, filed on March 26, 2025, more than three years past the limitation period of January 15, 2022. On this point, I disagree with the respondent because of the direction provided to us by the Supreme Court of Canada in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 (“Yatar”).

32In Yatar, the Supreme Court decided that when an applicant’s benefits are reinstated, the limitation period can only be triggered when they are validly terminated again (para. 74). In my view, the prior decision of the Tribunal dated September 17, 2024 reinstated the applicant’s IRBs which were previously denied by the respondent on January 15, 2020. After a reconsideration decision was released to the parties upholding the Tribunal’s finding with respect to IRBs, the respondent paid out the applicant’s entitlement to the full pre-104 week IRBs. The applicant inquired of post-104 IRBs on March 11, 2025 and the respondent provided its denial of any entitlement to post-104 week IRBs on March 12, 2025.

33The respondent argues that to conclude a later limitation date at this point would cause it prejudice. I note that as per its own submissions, it recognized that pre-104 week IRBs and post-104 week IRBs are one benefit and a denial of the IRB would trigger the limitation period for both. Also, the first application was filed at a time where the post-104 week IRBs had already commenced, as noted by the respondent. The respondent had the opportunity at that time and throughout the last three years to assess the applicant to determine whether she meets the complete inability test for post-104 week IRBs under the Schedule.

34For the reasons stated above, I find that the applicant filed her current application within the two-year limitation period because, as per Yatar, the Tribunal reinstated the applicant’s IRBs. A subsequent denial of entitlement to IRBs was provided on March 12, 2025 which restarted the clock.

The respondent is not entitled to costs

35Rule 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.

36The respondent submits that the applicant worked as a legal assistant at a law firm for years and is a sophisticated litigant. She had representation by counsel who possesses the background, education and experience to properly interpret the jurisprudence and the Schedule. While clearly erroneous, the respondent argues that the applicant’s claim lacks a legal basis and is not serious or reasonably purposeful. An informed person would find that applicant’s conduct unreasonable and subject to censure through a cost award. The respondent seeks costs in the amount of $250.00.

37The applicant submits that no costs should be awarded given the novel nature of this disputed issue.

38As I have found that the preliminary issues do not apply to the current application, contrary to the respondent’s submissions, I do not find that the applicant’s conduct amounts to unreasonable, frivolous, vexatious or bad faith conduct. No costs will be awarded.

ORDER

39For all the above reasons, I find:

a. The doctrine of res judicata does not apply to the current application.

b. The current application was filed within the two-year limitation period.

c. The relief for costs in the amount of $250.00 payable to the respondent, is denied.

d. The applicant shall proceed to a hearing on the substantive issues as previously scheduled.