Licence Appeal Tribunal File Number: 25-004140/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:
Akanksha Muddapati
Applicant
and
Primmum Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Arvin Gupta, Counsel
For the Respondent:
Matthew Samuels, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Akanksha Muddapati (the “applicant”) was involved in an automobile accident on May 2, 2020 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 Primmum Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding to a hearing by the doctrine of res judicata?
ii. Is the applicant liable to pay costs to the respondent?
3In its written preliminary issues hearing submissions, the respondent added a request for costs, on the basis that the applicant is attempting to re-litigate the Minor Injury Guideline (“MIG”) issue which has been previously decided. The applicant makes no submissions in response.
4Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) allows a party to make a request for costs in writing or orally at a case conference or hearing at any time before a decision or order is released.
5I have added the respondent’s claim for costs to the list of issues in dispute because the respondent has raised the issues of costs against the applicant in its preliminary issues hearing submissions, and a party may raise the issue of costs at any stage of a hearing before the decision is released.
RESULT
6The applicant was found to be within the MIG in the previous decision dated September 26, 2024, and she is barred from proceeding with her application before the Tribunal because the doctrine of res judicata applies. The applicant is not liable to pay costs to the respondent.
PROCEDURAL ISSUES
ANALYSIS
Background
7The applicant was involved in an accident on May 2, 2020, and filed an application with the Tribunal (File no. 22-008606/AABS). A written hearing was scheduled for January 26, 2024 and in a decision dated September 26, 2024 (the “2024 decision”), the Tribunal determined that the applicant remained within the MIG, and that she was not entitled to the treatment plans for an occupational therapy assessment and psychological services beyond the MIG limits.
8The applicant filed a request for reconsideration of the 2024 decision, however, the request was denied since the applicant filed the request for reconsideration beyond the deadline in Rule 18.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).
9The applicant subsequently submitted additional treatment plans, which were denied by the respondent on the basis that the applicant remains within the MIG. The applicant then applied to the Tribunal for resolution in the present case. This second application again seeks a determination that the applicant be removed from the MIG and is entitled to payment for two new treatment plans and interest.
10At the case conference held on June 27, 2025, the respondent raised the preliminary issue that the doctrine of res judicata applies to the current application regarding the issue of whether the applicant’s injuries fall under the MIG.
Preliminary Issue: Res Judicata and Tribunal File 22-008606/AABS
11I find that that the doctrine of res judicata applies.
12The respondent submits the doctrine of res judicata applies to this application, as the Tribunal previously determined that the applicant suffered minor injuries as a result of this accident which were treatable within the limits of the MIG.
13The respondent submits that the factors have been met for the res judicata doctrine to apply, which include: the same parties were involved in both actions; and the previous decision was a final decision on the merits by the Tribunal.
14The applicant submits that although the Tribunal has already decided whether her injuries fall within the MIG, and res judicata does apply to her claim, but argues there are exceptions here to the doctrine of res judicata. The applicant submits that there is new evidence which was previously unavailable which will conclusively impeach the results of the previous decision. In the alternative, the applicant argues that res judicata does not apply to the question of whether the respondent is non-compliant with s. 38(9) of the Schedule regarding the two treatment plans in dispute because the respondent failed to give notice that the applicant’s injuries fall within the MIG.
15The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. Three preconditions must be established before the adjudicator can determine whether to exercise discretion to apply the doctrine of res judicata, or more specifically issue estoppel, as set out by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para.25:
i. that the same question has been decided;
ii. that the judicial decision which is said to create the estoppel was final; and,
iii. 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.
16I am satisfied that these preconditions have been met and that the doctrine of res judicata applies to this application. The prior decision was made on the merits and found that the applicant sustained injuries within the MIG. Further, the 2024 decision was a final decision. I find that the parties are the same as in the previous application.
17Although the applicant argues she has new evidence, (which I will address below), I find that the issue of MIG has already been decided. The applicant has already conceded that res judicata applies but argues that it should be waived in this instance. I will now turn to consider this argument.
Waiver of Res Judicata and new evidence
18I find that the applicant has not established that res judicata should be waived in this case.
19The 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.
20The applicant further submits the test that res judicata can be waived is enunciated in the case of Amalathasan v. Certas Home and Auto Insurance Company, 2023 CanLII 17707 (ONLAT), which lists the factors set out in the Supreme Court of Canada’s decision of Toronto (City) v. CUPE Local 79, 2003 SCC 63, at para. 52, as follows:
a) The first proceeding is tainted by fraud or dishonesty;
b) Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or
c) When fairness dictates that the original result should not be binding in the new context.
21The applicant does not argue the first proceeding was tainted by fraud or dishonesty.
There is no fresh, new evidence
22I find that there is no fresh, new evidence in this case that would impeach the original findings.
a) Adjusters’ log notes
23The applicant submits that the respondent produced the adjusters’ log notes on July 18, 2025, and they were unavailable at the previous hearing. The applicant submits that the adjusters’ log notes indicate that the respondent made a determination that her injuries do not fall within the MIG. The applicant argues that the respondent withheld the non-MIG determination, which was an unfair or deceptive act or practice, pursuant to s. 438 of the Insurance Act.
24The respondent submits that res judicata applies, since the applicant has not produced new evidence that was unavailable at the time of the previous decision which would conclusively impeach the original results. The respondent argues that the adjusters’ log notes were available at the time of the previous hearing, but the applicant did not request any documents from the respondent at the case conference held on April 17, 2023. The respondent argues that the applicant could have requested the adjusters’ log notes before the deadline for productions in the previous hearing, and the fact that she was remiss in doing so does not make these records unavailable. The respondent further submits that the adjusters’ log notes are not evidence which would conclusively impeach the original results.
25The adjuster’s log notes are not medical evidence. The applicant suggests that the notes recorded while adjusting her claim are evidence that she sustained a non-MIG injury. They are not. Rather, the notes are a collection of records documenting the adjusting of the applicant’s claim. Here, they have no value from a medical perspective.
26I am not satisfied that the adjuster’s log notes provide evidence of a non-MIG injury that was previously unavailable and would conclusively impeach the original results.
27I find that the adjusters’ log notes do not constitute fresh, new evidence that the applicant was removed from the MIG, or that the respondent withheld this information from the applicant. I find that the log notes were available at the time of the previous hearing, and the applicant did not request them from the respondent. Further, I find that the log notes are not medical evidence, nor do they contain an explanation with reasons why the applicant’s injuries should not fall within the MIG.
28I find that the respondent did not engage in a deceptive act or practice in not releasing the adjusters’ log notes to the applicant until after the applicant requested them.
b) Dr. Ahmed Jwely’s report
29The applicant further submits that an Insurer’s Examination (“IE”) report dated July 9, 2024, by Dr. Ahmed Jwely, psychiatrist, provides new medical evidence that she has been diagnosed with a somatic symptom disorder, chronic. The respondent has included a copy of Dr. Jwely’s report in its hearing submissions. The applicant argues that the new report is based on updated diagnostic testing of the applicant’s psychological condition. However, Dr. Jwely did not provide an opinion on whether or not the applicant remains in the MIG, he only addressed the unapproved portion of a treatment plan in dispute for psychological services.
30The respondent submits that the opinion of Dr. Jwely does not contain medical evidence that was previously unavailable which would impeach the original results. The respondent argues that the report of Dr. Jwely is based on medical documentation and the applicant’s self-reports which are unchanged from the 2024 decision. The respondent submits that Dr. Jwely did not review new medical evidence in preparing his report, other than the treatment plan dated March 29, 2022, and partial approval for psychological services.
31I find that although the assessment by Dr. Jwely took place on May 29, 2024, after the previous hearing on January 26, 2024, he did not consider evidence that was previously unavailable which would question the validity of the original result. I find that the applicant’s medical documentation and pain complaints were already considered in the 2024 decision.
32Consequently, the applicant remains bound by the previous determination in Tribunal file 22-008606/AABS, and res judicata is not waived.
Fairness does not dictate that the original result should not be binding in the new context
33I find that fairness does not dictate that the original result should not be binding in the new context.
34The applicant submits that the principles of fairness require that the Tribunal consider whether the respondent made a non-MIG determination and the fresh medical evidence which was unavailable at the time of the previous hearing. The applicant submits that the respondent unfairly withheld information from her that she was removed from the MIG. The applicant refers to the decision in M P v. Aviva General Insurance Canada, 2019 Can LII 119736 (ON LAT), which concerns an award against an insurer since it unreasonably withheld or delayed the payment of benefits to an insured under s.10 of O. Reg 664, RRO 1990. I find that this case does not apply here because, there were no benefits unreasonably withheld or delayed, and the respondent did not notify the applicant that her claim was removed from the MIG. Although the applicant makes this submission, she does not point or direct me to evidence that she is out of the MIG.
35The respondent argues that the log notes do not indicate that the applicant was removed from the MIG. However, the respondent admits that the applicant received funding for psychological treatment beyond the MIG limits, which would suggest that she was removed from the MIG funding limit. This is information that was available at the time of the original hearing and this is not new evidence that would conclusively impeach the original result.
36I find that initially the respondent was advised that the applicant had a fractured right leg. However, on review of medical records, it was later discovered there was no fracture, and by then, the respondent had already approved psychological treatment beyond the MIG limits. I find that this is not new information that was unavailable at the time of the original hearing.
37Although the applicant submits that the adjusters’ log notes contain information that was unavailable at the time of the previous hearing, the log notes were available at the time of the original hearing. I find that 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 applicant did not request the log notes before the previous hearing.
38However, the applicant does not explain how any exception applies if her injuries are within the MIG, and therefore, it is not necessary to consider the disputed treatment plans as the $3,500 MIG funding limit has been exhausted. Therefore, there is no basis to waive the application of res judicata in these circumstances, and the application is dismissed.
The MIG applicability argument and alleged contravention of s. 38(9)
39I find that the applicant’s arguments that the respondent contravened s. 38(9) of the Schedule does not constitute a basis for waiver of res judicata regarding whether her injuries fall within the MIG. I further find that since the 2024 decision found that the applicant’s injuries are within the MIG, it is not necessary to determine whether the treatment plans in dispute are reasonable and necessary.
40Section 38(9) of the Schedule states that if the insurer believes that the MIG applies to the injured person’s impairment, the notice under subsection 38(8) must advise the insured person.
41Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) and 38(9) of the Schedule, which includes the insurer being prohibited from taking the position that the insured person has an impairment to which the MIG applies and the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.
42The applicant argues that because the respondent failed to include the MIG as a basis of denial as required by s. 38(9), it is barred from taking the position that the MIG applies in this application. Respectfully, this submission incorrectly applies the effect of s. 38(9). The evidentiary burden to establish on a balance of probabilities that an applicant’s injuries are outside the MIG lies with the applicant. An alleged contravention of s. 38(9) does not affirmatively establish that the applicant has met this burden.
43The applicant addresses the substantive issues listed in the Case Conference Report and Order (“CCRO”) dated June 30, 2025, regarding the denial of the treatment plans in dispute, which are not issues in dispute for the preliminary issues hearing. Therefore, I will not consider the applicant’s submissions regarding whether the respondent’s denials dated July 11, 2024, and February 4, 2025, contravenes s. 38 of the Schedule, or whether these treatment plans are payable.
44The respondent submits that in letters dated September 27, 2021, it notified the applicant that her injuries fall within the MIG.
45I find that the respondent’s denial of the treatment plans in dispute is not part of this preliminary issues hearing, and therefore, the applicant’s submissions regarding s. 38(9) of the Schedule will not be considered.
Is the respondent entitled to costs?
46The respondent’s request for costs is denied.
47Under Rule 19, the Tribunal may grant costs if it finds that a party acted unreasonable, frivolously, vexatiously or in bad faith. In deciding whether to award costs, several factors are to be considered by the Tribunal: the seriousness of the conduct, whether the conduct was in breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, prejudice to the other party, and the potential impact a costs order would have on individuals accessing the Tribunal system. Under Rule 19.5, the Tribunal may award a different cost amount than requested.
48In seeking an unspecified amount in costs from the applicant, the respondent makes no specific submissions on how the applicant acted unreasonably, frivolously, or in bad faith in pursuing her application.
49I find that the fact that the applicant filed submissions late in previous proceedings is not in and of itself, is not necessarily unreasonable, frivolous, vexatious, or in bad faith. The lateness of the applicant’s submissions and evidence did not interfere with the Tribunal’s ability to carry out a fair, efficient and effective process. The respondent makes no submissions to address whether it has suffered any prejudice as a result of the fact that the applicant previously filed late submissions. Further, the potential impact an order for costs would have on the applicant significantly outweighs any prejudice to the respondent. Further, the respondent has not specified an amount of costs.
50For all these reasons, I find that the applicant is not liable to pay costs to the respondent.
ORDER
51I find that the applicant is barred from proceeding with her application pursuant to the doctrine of res judicata.
52The application is dismissed and the substantive hearing is vacated.
53The applicant is not liable to pay costs to the respondent.
Released: September 4, 2025
___________________________
Lisa Holland
Adjudicator