Zhu v. Co-operators General Insurance Company, 2025 CanLII 45340

Citation: Zhu v. Co-operators General Insurance Company, 2025 ONLAT 23-003306/AABS - R

RECONSIDERATION DECISION

Before: Ulana Pahuta

Licence Appeal Tribunal File Number: 23-003306/AABS

Case Name: Le Rong Zhu v. Co-operators General Insurance Company

Written Submissions by:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Emily Schatzker, Counsel

OVERVIEW

1On February 18, 2025, the respondent requested reconsideration of the Tribunal’s decision dated January 29, 2025 (“decision”).

2In the decision, I found that the applicant was partially entitled to the treatment plan (“OCF-18”) for catastrophic (“CAT”) assessments. I found that the applicant was entitled to the proposed physiatry, occupational therapy and psychological CAT assessments, along with an overall summary and analysis.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The respondent is seeking a reconsideration pursuant to Rule 18.2(a) and (b). The respondent submits that the decision should be varied and requests a finding that the physiatry and occupational therapy assessments, and the overall summary analysis, be found not to be reasonable and necessary. The respondent did not request a reconsideration of my finding that the applicant was entitled to the proposed psychological portion of the CAT assessment, or the costs of completing the OCF-18 and OCF-19.

5The applicant argues that the respondent has not established an error of law or fact such that the Tribunal would have reached a different result had the error not been made or established a material breach of procedural fairness. The applicant submits that the request for reconsideration should be dismissed.

RESULT

6The respondent’s request for reconsideration is granted. Pursuant to Rule 18.4, I vary the decision to find that the applicant is not entitled to the physiatry and occupational therapy assessments, or the overall summary analysis.

ANALYSIS

7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Error of law in my application of the doctrine of res judicata which would have likely led to a different result if this error had not been made

8I find that I made an error of law in my application of the doctrine of res judicata when I determined that res judicata did not apply to prior findings of fact. I agree with the respondent that if this error had not been made, I would have likely reached a different result. As such, I find that the respondent has established grounds for reconsideration under Rule 18.2(a).

9The respondent submits that in the decision I erred in finding that res judicata did not apply to the proposed physiatry and occupational therapy CAT assessments. In its submissions for the initial hearing, the respondent had argued that the Tribunal was bound by Adjudicator Neilson’s findings in the decision Zhu v The Co-Operators General Insurance Company, 2023 CanLII 139 (ONLAT) that the applicant’s chronic pain was not caused by the accident, and that he did not suffer from a complete inability to carry on a normal life. Since the previous Tribunal had found that the applicant did not suffer from physical impairments or chronic pain as a result of the accident, the respondent had argued that permitting physical assessments for catastrophic impairment could lead to inconsistent findings that res judicata is meant to avoid.

10In support of its position, the respondent in its reconsideration submissions cites the Superior Court of Justice decision Penny v. Royal & Sun Alliance Insurance Company of Canada, 2006 CanLII 23942 (ONSC). In this decision Justice Smith outlines the principles of issue estoppel (res judicata) as being:

a) The question decided in the first proceeding must be fundamental to the decision in that first proceeding not collateral to that decision;

b) The question decided in the first proceeding includes all subject matter encompassing the question, whether decided explicitly or by necessary logical implication; and

c) The estoppel extends to the issues of fact, law and mixed fact and law that are necessarily bound up with the determination of that “issue” in the prior proceedings.

11While the respondent concedes that it did not cite Penny v. Royal & Sun at the initial hearing, it argues that this decision remains “good law” and that the condition for res judicata was met. The respondent further submits that the applicant had not provided any submissions on res judicata at the initial hearing.

12The applicant argues that in the decision, I correctly applied the test for res judicata as set out in the jurisprudence provided by both parties in their initial hearing submissions. He submits that the respondent is now attempting to re-litigate the issue.

13I agree with the respondent that I made an error of law at paragraphs 18-20 of the decision where I found that the respondent had not established that res judicata applies to the Tribunal’s prior findings on chronic pain.

14While I agree with the applicant that the respondent is introducing new caselaw on reconsideration which had not been submitted at first instance, I further find that issue estoppel (res judicata) is considered in the Supreme Court of Canada decision Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 (“Danyluk”), cited in Penny v. Royal & Sun and in Ramphal v The Co-Operators Insurance Company, 2023 CanLII 42600 (ON LAT) which was cited at first instance. While Danyluk was not expressly relied upon by the parties in their initial hearing submissions, the decision is binding upon me. In Danyluk, at paragraph 25, the Supreme Court determined that there were three pre-conditions for issue estoppel (a branch of res judicata) which are as follows:

a) That the same question has been decided;

b) That the judicial decision which is said to create the estoppel was final; and,

c) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

15The Supreme Court further clarified in paragraph 54 of Danyluk that issue estoppel means that

“once a material fact such as a valid employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that “issue” in the prior proceeding.”

16When applying the principles set out in Danyluk, I find that the doctrine of res judicata (issue estoppel) does apply to the proposed physiatry and occupational therapy CAT assessments. The prior adjudicator’s findings that the applicant’s physical impairments or chronic pain were not caused by the accident are material facts, as specified in Danyluk. I also find that I would have likely reached a different result had the doctrine of issue estoppel been applied in my decision. As such, I find that the respondent has established grounds for reconsideration under Rule 18.2(b).

Rule 18.4 – Outcome of the reconsideration

17Rule 18.4 provides that upon reconsidering a decision of the Tribunal, the Tribunal may dismiss the request, or, after providing the responding parties with an opportunity to make submissions, confirm, vary, or cancel the decision or order, or order a rehearing on all or part of the matter. Having found that the applicant has established grounds for reconsideration, I will now turn to the outcome.

18For the reasons that follow below, I vary the decision and find that the applicant is not entitled to the proposed physiatry and occupational therapy CAT assessments, or the overall summary analysis.

19I agree with the respondent that if issue estoppel is applied in this case and I am bound by the previous Tribunal’s findings that the applicant’s chronic pain and physical impairments were not caused by the accident, then any proposed physical assessments for catastrophic impairment would not be reasonable and necessary. Further, I agree with the respondent that at the initial hearing, and in reconsideration, the applicant did not provide submissions on the grounds on which such issue estoppel should be waived.

20As noted in the Supreme Court of Canada decision Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (“CUPE”) at para 52, res judicata can be waived if: (i) the first proceedings were tainted by fraud or dishonesty; (ii) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (iii) when fairness dictates that the original result should not be binding in the new context. The applicant did not provide submissions, in reconsideration or at the initial hearing, in support of the position that the conditions specified in CUPE have been met.

21Further, when reviewing the evidence submitted by the applicant in the initial hearing in support of his claim for the proposed physiatry and occupational therapy CAT assessments, I do not find that it was new evidence, previously unavailable, which conclusively impeached the original results. The applicant had submitted at the initial hearing a new CAT assessment report from Dr. Wong, physiatrist. However, the medical evidence reviewed by Dr. Wong in coming to his determination, was the same evidence (from 2019 and earlier) which had been considered at the previous hearing. I further agree with the respondent that Dr. Wong did not consider the applicant’s pre-existing medical history when providing his diagnoses.

22Accordingly, the applicant has not established that the proposed physiatry and occupational therapy CAT assessments are reasonable and necessary. Since I have found that the proposed physical CAT assessments are not reasonable and necessary and that only the proposed psychological CAT assessment is still going forward, I find that the cost of a summary analysis is not reasonable and necessary.

CONCLUSION & ORDER

23The respondent’s request for reconsideration is granted.

24Pursuant to Rule 18.4, I vary the decision to find that the applicant is not entitled to the physiatry and occupational therapy assessments, or the cost of the overall summary analysis.

Ulana Pahuta Adjudicator Tribunals Ontario – Licence Appeal Tribunal