Licence Appeal Tribunal File Number: 24-007177/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:
Zainab Naji
Applicant
and
Definity Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Lisa Bishop, Counsel
For the Respondent:
Ainsley Shannon, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Zainab Naji (the “applicant”) was involved in an accident on April 4, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Definity Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The first application to the Tribunal, bearing file number 21-004242, concerned the applicability of the Minor Injury Guideline (“MIG”), attendant care benefits, non-earner benefits, entitlement to various treatment plans, and interest. The substantive issues were withdrawn, but the hearing proceeded on whether the applicant’s claims were barred for failure to attend insurer’s examinations. A decision was issued, dated February 17, 2023, in which the Tribunal found that the applicant was barred from proceeding with her claim for medical, rehabilitation, and attendant care benefits for failure to attend the section 44 insurer’s examinations (“the decision”).
3The applicant filed a second application to the Tribunal disputing the MIG and two different treatment plans that were not disputed in the first application. At the case conference on October 4, 2024, the respondent raised a preliminary issue of whether the applicant was precluded from proceeding with her application because of the doctrine of res judicata, as the Tribunal had already determined that her claim for benefits was barred for failing to attend insurer’s examinations. A written preliminary issue hearing was scheduled.
PRELIMINARY ISSUES IN DISPUTE
4The following preliminary issues are to be decided:
i. Is the applicant barred from proceeding to a hearing by the doctrine of res judicata?
ii. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to attend insurer’s examinations under section 44 of the Schedule?
RESULT
5The doctrine of res judicata does not apply.
6The applicant is not barred from proceeding with her application for failing to attend insurer’s examinations.
ANALYSIS
The Law
7The doctrine of res judicata prevents a party from re-litigating a dispute that has already been decided. The respondent argues the doctrine of res judicata applies and relies on the Tribunal decision Alazab v. Aviva General Insurance, 2022 CanLII 14944 (ON LAT), that in turn references Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (“Danyluk”), and submits that there are four pre-conditions that need to be met for the doctrine of res judicata to apply. While I am aware that numerous Tribunal decisions have referenced a four-point test for res judicata with reference to Danyluk, they are not binding on me, and this would be an error.
8Danyluk does not outline four pre-conditions for res judicata, but rather sets out the three pre-conditions of the doctrine of issue estoppel. The Supreme Court decision in Toronto (City) v. CUPE, 2003 SCC 63 (“Toronto (City)”) refers to Danyluk at para 23 and notes that issue estoppel is a branch of the doctrine of res judicata (the other branch being cause of action estoppel) which precludes the relitigation of issues previously decided in a court or other proceeding. The Court set out three preconditions that must be met for issue estoppel to be successfully invoked:
i. The issue must be the same as the one decided in the prior decision;
ii. The prior decision must have been final; and,
iii. The parties to both proceedings must be the same, or their privies.
Res Judicata does not apply
9The respondent submits that the parties proceeded to an oral hearing on whether the applicant was barred from pursuing her application on account of her failure to attend insurer’s examinations, whether the MIG applies to the applicant’s injuries, and if so, whether the treatment plans are reasonable and necessary.
10The respondent submits that the applicant is barred by section 55 from disputing the MIG (and by extension any treatment outside the MIG limits) as she failed to attend properly scheduled insurer’s examinations addressing the MIG.
11To me, the respondent has mischaracterized the Tribunal’s decision. There is no indication that the applicability of the MIG was an issue in dispute, or the reasonableness and necessity of treatment plans. The decision indicates that the substantive issues were withdrawn, and that the parties proceeded solely on “whether the applicant is barred from proceeding with her claims for medical, rehabilitation and attendant care benefits pursuant to s. 55 of the Schedule for failure to attend the s. 44 insurer examinations”. The parties could have requested reconsideration of the decision if there was an error with respect to the issues in dispute, but did not.
12In any event, the Tribunal considered the notices of examination as they related to two treatment plans ($2,200.00) and ($2,195.00). The Tribunal found that the notices of examination in relation to both plans were valid, and that the applicant was non-compliant with her obligation to attend two insurer’s examinations. While the Tribunal made reference to the fact that she found the evidence unpersuasive that the applicant suffered an injury beyond the MIG, the Tribunal did not make a finding as to whether the applicant’s injuries were subject to the MIG.
13The Tribunal also did not make a finding that the applicant was precluded from disputing that she was subject to the MIG for failure to attend the insurer’s examination. The notices of examination indicate that the examinations were requested in relation to the two respective treatment plans. Neither notice of examination indicated that the reason for the examination was to determine whether the applicant’s injuries fell within the MIG. Rightly so, given that the MIG is not a benefit. Section 44 states that the insurer may request an examination in order to determine if an insured person is or continues to be entitled to a benefit under the Schedule. Failure to comply with a valid notice of examination under section 44 does not preclude the applicant from disputing the applicability of the MIG itself, because the MIG is a guideline not a benefit.
14The Tribunal found that the notices of examination with respect to the treatment plans ($2,200.00 and $2,195.00) in dispute were valid, and that the applicant was non-compliant with her obligation to attend the insurer’s examinations scheduled for June 4, 2019 and December 18, 2019, respectively.
15Neither of those treatment plans are before me. The current application disputes entitlement to two different treatment plans -- $5,470.50 for occupational therapy services and $1,796.00 for physiotherapy from 2022. The applicant also disputes the applicability of the MIG, an award, and interest. Given that the issues in dispute are different from those decided in the prior decision, I find that the respondent has not established that the required preconditions are met in order for issue estoppel to apply.
The respondent has not established that the applicant was non-compliant with s. 44
16The respondent submits that the applicant is non-compliant with her obligation to attend insurer’s examinations with respect to the two treatment plans in dispute in the current application, and therefore is barred from proceeding with her claim.
17As noted above, the MIG is not a benefit, and there was no finding by the Tribunal that the applicant was precluded from disputing the MIG due to her prior non-compliance with section 44.
18I find that the respondent did not request that the applicant attend insurer’s examinations with respect to the two treatment plans currently in dispute. The applicant cannot be non-compliant with an insurer’s examination that was never requested.
19By letter dated September 1, 2022, the respondent denied the treatment plan for $5,470.50 (dated August 8, 2022) indicating that the plan was denied based on its belief that the MIG applied. It notes that the respondent was not requesting her attendance at an insurer’s examination under section 44, but that it reserved the right to further review the treatment plan and may later request her attendance at an insurer’s examination, but would provide her with appropriate notice.
20Likewise, by letter dated September 15, 2022 regarding the treatment plan for $1,796.00, the respondent again indicated that it was not requesting her attendance at an insurer’s examination, but reserved the right to do so in the future, with appropriate notice.
21There is no evidence to support that the respondent ever requested an insurer’s examination with respect to either of the subject treatment plans. Despite the fact that the Tribunal found in its decision that the applicant was barred from proceeding with those issues in dispute before it at that time, it does not bar the applicant from proceeding with the subject claims, particularly because the Tribunal made no findings with respect to causation or whether the applicant was subject to the MIG.
CONCLUSION AND ORDER
22The doctrine of res judicata does not apply.
23The respondent has not established that the applicant was non-compliant with a request for an insurer’s examination under section 44.
24The applicant may proceed to the hearing on the substantive issues, as previously scheduled.
Released: March 21, 2025
Kate Grieves
Adjudicator