Xiao Tong Chen v. Co-operators General Insurance Company, 2025 CanLII 35915

Licence Appeal Tribunal File Number: 22-013556/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:

Xiao Tong Chen

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Christopher Climo

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Emily Schatzker, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Xiao Tong Chen, the applicant, was involved in an automobile accident on February 27, 2019, and sought benefits 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2A case conference was held on July 28, 2023. The Tribunal issued a Case Conference Report and Order on July 31, 2023, to proceed with a written hearing. On September 11, 2023, the respondent served a Notice of Motion to dismiss the application on the grounds of res judicata. On September 12, 2023, the Tribunal notified the parties that the motion would be heard at the scheduled written hearing. The parties were given an opportunity to make submissions on the preliminary issue.

PRELIMINARY ISSUE

3Is the applicant barred from proceeding to a hearing by the doctrine of res judicata?

SUBSTANTIVE ISSUES

4The substantive issues in dispute are:

i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline ("MIG")?

ii. Is the applicant entitled to $4,416.71 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 submitted December 2, 2020 and denied December 16, 2020?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

v. Is the respondent entitled costs pursuant to Rule 19.5 of the Licence Appeal Tribunal Rules, 2023, on the basis that the application was frivolous, vexatious, and unreasonable and an attempt to re-litigate the 2020 application rather than seeking a reconsideration?

vi. Is the applicant entitled to costs for the preliminary issues motion pursuant to Rule 19.5, on the basis that it had to reply to a Notice of Motion to dismiss the application it deems unreasonable, frivolous, and against the interest of having a claim heard on its merits.

RESULT

5The applicant is barred by the doctrine of res judicata from proceeding to a hearing on substantive issue i. above.

6The applicant may proceed to a hearing on the remaining substantive issues.

7As the applicant remains within the MIG, I do not need to consider whether the treatment plan is reasonable and necessary.

8No interest is payable.

9No award is payable.

10No costs are payable.

ANALYSIS

Preliminary Issue

11I find that the issue of whether or not the applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit has already been decided and is subject to the doctrine of res judicata.

12I find that the issue of whether the applicant is entitled to $4,416.71 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 submitted December 2, 2020 and denied December 16, 2020 has not already been decided and is not subject to the principle of res judicata.

The Position of the Parties

13The respondent submits that the applicant previously initiated an appeal (Chen v Co-Operators Gen. Ins. Co., 2021 CanLII 104636 (ON LAT)) seeking a declaration that her injuries exceeded the MIG and seeking entitlement to a psychological assessment and psychological counselling. The respondent submits that the Tribunal issued a decision in that appeal that the applicant's accident-related impairments did not warrant removal from the MIG.

14The respondent submits that the applicant initiated another appeal (Licence Appeal Tribunal File Number 22-001992) related to the same accident again seeking a declaration that her injuries exceed the MIG and seeking entitlement to a chiropractic treatment totalling $4,416.71. The respondent submits that it filed a Notice of Motion on April 21, 2022, to dismiss the application on the grounds of res judicata and that the applicant subsequently withdrew the appeal on April 29, 2022.

15The respondent submits that the applicant initiated the current appeal on December 12, 2022, related to the same accident, again seeking a declaration that her injuries exceed the MIG and seeking entitlement to the same chiropractic treatment totalling $4,416.71.

16The respondent submits that an appeal of previously adjudicated claims may proceed only if fresh new evidence is submitted that was previously unavailable, and if the new evidence would conclusively impeach the original results. The respondent submits that the applicant seeks a determination that her injuries are beyond the MIG by relying on the same evidence as presented in the prior hearing and is therefore barred from proceeding to a hearing by the doctrine of res judicata. The respondent relies on DT v Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ON LAT).

17The respondent is seeking costs for preparation of their submissions pursuant to Rule 19.5 of the Licence Appeal Tribunal Rules, 2023, on the basis that the application is frivolous, vexatious, and unreasonable and an attempt to re-litigate the 2020 application rather than seeking a reconsideration.

18The applicant submits that a previous MIG determination is not static and can be reassessed over time due to new evidence being presented to the Tribunal. The applicant submits that there are new and updated medical records that were not available to the Tribunal in October 2021 when the prior determination on MIG was made. The applicant specifically refers to clinical notes and records ("CNRs") from Dr. Cheng produced on June 10, 2022, CNRs from Birchmount Hospital produced on May 27, 2022 and CNR's from Dr. Xiang dated April 28, 2022, as well as an OHIP summary provided on May 16, 2022.

19The applicant also refers to CNRs from Yonge Street Mission dated in 2019 and 2020, CNRs from Mr. Bruce Cook, Psychologist, dated in 2019 and CNRs from Dr. Chu provided in 2020.

20The applicant submits that the adjudicator erred in the Tribunal decision of October 2021 by stating that the MIG limits had been exhausted and therefore incorrectly determined that the treatment plans sought in that appeal were not reasonable and necessary. The applicant further submits that the treatment plan sought in the current appeal has not been considered and ruled on by the Tribunal.

21The applicant relies on decisions that state an applicant can be removed from the MIG based on chronic pain C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT) and psychological impairment Zhao v The Personal Insurance Company, 2023 CanLII 56122 (ON LAT).

22The applicant is also seeking costs for the preliminary issues motion pursuant to Rule 19.5, for having to reply to a motion it deems unreasonable, frivolous, and against the interest of having a claim heard on its merits.

Issue Estoppel

23The test for issue estoppel, which is a branch of the broader doctrine of res judicata, is set out in the Supreme Court of Canada decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. The doctrine of issue estoppel prevents a party from relitigating an issue that has already been decided. The Supreme Court of Canada in Toronto (City) v. CUPE Local 79, 2003 SCC 63 ("Toronto (City)") at para 23 referred to Danyluk and set out that for issue estoppel to be successfully invoked, three preconditions must be met:

i. The issue must be the same as the one decided in the prior decision;

ii. The prior judicial decision must have been final; and

iii. The parties to both proceedings must be the same, or their privies.

24I find as a matter of fact, that the applicant submitted an appeal in Chen v Co-Operators Gen. Ins. Co., 2021 CanLII 104636 (ON LAT) seeking a declaration that her injuries exceeded the MIG and seeking entitlement to a psychological assessment and psychological counselling. The Tribunal issued a decision on October 21, 2021 that the applicant's accident-related impairments did not warrant removal from the MIG.

25I find as a matter of fact, that the applicant submitted the current appeal following the previous decision in Chen v Co-Operators Gen. Ins. Co., 2021 CanLII 104636 (ON LAT) and that the issues in dispute here are MIG and entitlement to a chiropractic treatment totalling $4,416.71.

26I am satisfied that the preconditions for issue estoppel are engaged. The MIG issue is the same as the one decided in the previous decision. The 2022 decision was a final judgment and the parties to both proceedings are the same. As such, I find that the applicant is in the MIG because the doctrine of issue estoppel applies.

Should Issue Estoppel be Waived

27The applicant argues that if res judicata does apply, it should be waived, since fresh, new evidence, previously unavailable, conclusively impeaches the original result, and fairness dictates that the original result should not be binding in the new context.

28As set out by the Supreme Court of Canada in Toronto (City) at para 52, issue estoppel 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.

29The applicant does not argue the first proceeding was tainted by fraud or dishonesty.

There is no fresh, new evidence

30The Case Conference Report and Order issued in Licence Appeal Tribunal File Number 20-002216 set the production deadline in that hearing as January 22, 2021.

31I find that the CNRs from Yonge Street Mission dated in 2019 and 2020, CNRs from Mr. Bruce Cook, Psychologist dated in 2019 and CNRs from Dr. Chu provided in 2020 do not meet the definition of fresh, new evidence that was previously unavailable as they were available prior to the January 22, 2021 production deadline and are in fact referred to by the adjudicator in his October 2021 decision.

32I find that CNRs from Dr. Cheng produced on June 10, 2022 do not meet the definition of fresh, new evidence which was previously unavailable and would conclusively impeach the original results. The CNRs refer to many visits prior to the production deadline, which would have been available for the initial hearing, and any visits after the production deadline are for medical conditions unrelated to the issues in dispute and do not mention the accident.

33I find that the CNRs from Birchmount Hospital produced on May 27, 2022 do not meet the definition of fresh, new evidence which was previously unavailable and would conclusively impeach the original results. The CNRs refer to many visits prior to the production deadline, which would have been available for the initial hearing, and a single notation dated January 26, 2021 that the applicant reported that they wanted to cease therapy sessions.

34I find that the CNR's from Dr. Xiang dated April 28, 2022 do not meet the definition of fresh, new evidence which was previously unavailable and would conclusively impeach the original results. Many of the records are undated, and the few that are dated after the production deadline are simply prescription renewals. There is mention of four motor vehicle accidents since February 2019, but nothing that specifically relates to the issues in dispute in this accident.

35The applicant referred to an OHIP summary provided on May 16, 2022, but their submissions did not contain the document. I therefore could not consider it.

Fairness does not dictate that the original result should not be binding in the new context

36I find that fairness does not dictate that the original result should not be binding in the new context.

37The applicant does not argue that at the time of the original hearing she was restricted in her submissions or financially unable to obtain reports. Rather the applicant argues that the respondent did not investigate and assess the claim fairly and acted unreasonably by not exhausting the MIG limits. The applicant had the opportunity to make these arguments at the time of the original hearing. As such, I am not persuaded that fairness dictates that the original result should not be binding in the new context, particularly since the new evidence does not meet the test required for removal from the MIG.

Issue estoppel should not be waived

38In this case, I find that the issue of MIG has already been decided and that issue estoppel applies. Further, I am not exercising my discretion to waive the doctrine, since I find that there is no fresh, new evidence that would conclusively impeach the original results, nor do I find that fairness dictates that the original result should not be binding in the new context given that the evidence tendered does not meet the test. While I acknowledge that the MIG is a status and thus can be fluid, for the reasons I have provided this is not a case that requires revisiting.

The Treatment Plan

39I have found that the issue of whether or not the applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit has already been decided and is subject to the doctrine of res judicata. It is therefore unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.

40The applicant submits that the MIG limit is not exhausted and that $2,075.50 remains. The respondent's submissions did not provide information on how much of the $3,500.00 MIG limit had been exhausted. The issue of whether or not the MIG limits are exhausted is not before me and the treatment plan at issue proposes amounts outside of the remaining funds available in the MIG, such that the parties can determine how to allocate the remaining funds.

Interest

41As I have found that there is no payment of benefits owing, no interest is payable.

Award

42Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

43As I have found that there is no payment of benefits owing, there is no basis upon which to consider an award in this matter.

Costs

44Both parties have requested costs. I have found that the applicant is barred from proceeding to a hearing by the doctrine of res judicata on one issue in dispute but not the other issues in dispute.

45After considering all the relevant factors in Rule 19.5, I find that neither party engaged in serious misconduct, was in breach of a direction or order of the Tribunal or interfered with the Tribunal's ability to carry out a fair, efficient and effective proceeding. As such neither party is entitled to costs.

ORDER

46I find that:

i. The issue of whether or not the applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit has already been decided and is subject to the doctrine of res judicata.

ii. As a prior decision of the Tribunal determined that the applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary as it proposes treatment outside of the MIG.

iii. No interest is payable.

iv. The applicant is not entitled to an award under section 10 of Regulation 664.

v. Neither party is entitled to costs.