Citation: Trimi v. Aviva General Insurance Company, 2026 ONLAT 25-003914/AABS

Licence Appeal Tribunal File Number: 25-003914/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:

Xhermi Trimi

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATORS:

Lisa Holland

Caley Howard

APPEARANCES:

For the Applicant:

Micheal Smitiuch, Counsel

Tim Daly, Counsel

For the Respondent:

Maia Abbas, Counsel

Court Reporter:

Bruce Porter

HEARD: by Videoconference

on December 2-4, 2025

OVERVIEW

1This application has a long history before the Tribunal.

2Xhermi Trimi, (the “applicant”) was involved in an automobile accident on May 30, 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 Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3An initial case conference took place on October 14, 2022 in Tribunal file number 21-015516/AABS. The issue in dispute was whether the applicant was entitled to an income replacement benefit (“IRB”) from December 6, 2021 to date and ongoing. Thereafter, the applicant withdrew his application and the parties entered into a tolling agreement dated December 13, 2022, which expired on December 13, 2023.

4The applicant filed another application on January 23, 2024, and a subsequent case conference took place on May 29, 2024 in Tribunal file number 24-001015/AABS. The issues in dispute were whether the applicant was entitled to an IRB from December 6, 2021 to date and ongoing; whether the respondent is liable to pay an award; and whether the applicant is entitled to interest on any overdue payment of benefits. The following two preliminary issues were raised by the respondent:

i. Is the applicant precluded from proceeding with his application because it was filed more than two years after the respondent denied each benefit claimed in the application?

ii. Is the applicant precluded from proceeding with the claim for an IRB because he failed to comply with the insurer’s request that he attend an insurer’s examination (“IE”) under s. 44 of the Schedule?

5The preliminary issues were decided in a decision dated November 1, 2024, which determined that the applicant was precluded from proceeding with his application because he failed to attend a properly scheduled IE. The Tribunal noted that an in-person or virtual psychological IE was a reasonable request, given the fact that an IE assessor regarding a different issue in dispute had diagnosed the applicant with a psychological impairment. Therefore, the applicant was obligated to attend the IE before proceeding to a hearing.

6The respondent sought reconsideration of the Tribunal’s decision on the basis that the Tribunal did not make a determination on the preliminary issue of whether the applicant is precluded from proceeding with his application because it was not filed within two years of the respondent’s denial (which was extended through a tolling agreement). In reconsideration decision dated March 7, 2025, the Tribunal noted that its decision was final in that the applicant was barred from proceeding with his application pursuant to s. 55 of the Schedule, as he failed to attend a properly scheduled s. 44 IE. The Tribunal also notes that its decision was not interlocutory in the anticipation that the applicant attend the IE and continue with his claim for an IRB. The Tribunal further noted that since the applicant was barred from proceeding under s. 55, it is not necessary to make a determination on whether he is also barred from proceeding because he missed the two-year limitation period.

ISSUES IN DISPUTE

7Preliminary issues: The 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 barred from proceeding to a hearing for an IRB because he failed to dispute the denial within the 2-year limitation period?

8Substantive issues: The substantive issues to be decided are:

i. Is the applicant entitled to an IRB in the amount of $400.00 per week from December 6, 2021?

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

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

iv. Is the respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules (the “Rules”)?

9The preliminary issue relating to the 2-year limitation period was added as a result of a motion by the respondent, on consent.

RESULT

10The doctrine of res judicata applies to the applicant’s claim for entitlement to an IRB. The applicant is barred from proceeding with this claim for an IRB.

11The applicant is not entitled to interest or an award.

12The applicant is not liable to pay costs to the respondent.

ANALYSIS

Background

13The applicant subsequently submitted a third application to the Tribunal, raising the same substantive issues which were decided in the 2024 decision. At the case conference held on July 3, 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 is entitled to an IRB. At the case conference, the applicant did not agree to a separate preliminary issue hearing.

14The panel will first address the preliminary issues before considering the applicant’s substantive entitlement to an IRB.

Preliminary Issue: Res Judicata and Tribunal File 24-001015/AABS

15The panel finds that that the doctrine of res judicata applies to the issue of the applicant’s entitlement to an IRB.

16The 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, which is a branch of the broader doctrine of res judicata, as set out by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para.25:

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

b. The prior judicial decision must have been final; and,

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

17The respondent submits the doctrine of res judicata applies to this application, as the Tribunal previously determined that the applicant is statute-barred from proceeding to a substantive hearing regarding his entitlement to an IRB because he did not attend a s. 44 assessment. The respondent argues that the preliminary issue hearing which resulted in the 2024 decision barred the applicant from proceeding to a substantive hearing on the IRB issue, and the decision was upheld on reconsideration. The respondent submits that although the applicant has brought another application and requested the Tribunal to hear the preliminary issues together with the substantive issue, he is barred from proceeding on the substantive issue because the doctrine of res judicata applies.

18The applicant argues that res judicata does not apply because s. 55 is not a permanent bar to his substantive claim for an IRB. The applicant submits that since the Tribunal has not determined the merits of his substantive entitlement to an IRB, res judicata does not apply to this issue. The applicant submits that although he declined to attend a s. 44 assessment with Dr. Monique El-Hage on March 25, 2022 and April 6, 2022, after the release of the 2024 decision, on November 5, 2024, he agreed to attend a s.44 assessment, but the respondent did not reschedule the assessment. Therefore, the applicant submits that since he subsequently agreed to attend the s. 44 assessment, s. 55 should not be a permanent bar to proceeding with his substantive claim for an IRB.

19The applicant further argues that res judicata does not apply to his claim for an IRB because the respondent did not provide a compliant denial to trigger the limitation period. The applicant submits that the respondent did not provide a clear and unequivocal denial of an IRB to trigger the two-year limitation period.

20We find that the three preconditions set out in Danyluk have been met and that the doctrine of res judicata applies to this application. The issue is the same as was decided in the prior decision dated November 1, 2024. The prior decision was made on the merits of the preliminary issue of whether the applicant did not attend a properly-scheduled s. 44 assessment and found that the applicant did not attend and is statute-barred from disputing the denial of an IRB in accordance with s. 55(1)2. of the Schedule. Further, the 2024 decision was a final decision. We find that the parties are the same as in the previous application.

21In reaching our conclusion we have considered the applicant’s arguments that the 2024 decision was a procedural issue that did not address his substantive entitlement to an IRB. The applicant testified that he knowingly refused to attend the s. 44 assessments in March and April 2022 to address his pre-104-week entitlement to an IRB. The applicant submits that since he subsequently agreed to attend a s. 44 assessment after receiving the 2024 decision, he may now proceed to a hearing on his substantive entitlement to an IRB. However, by the time the 2024 decision was released, the respondent had lost its opportunity to determine whether the applicant was entitled to a pre-104-week IRB, since the post-104-week period began on May 30, 2022. The panel acknowledges the applicant’s position that the 2024 decision was procedural, and did not dispose of the substantive issue of IRBs because as a result of the preliminary issue determination, the substantive hearing on the issue of IRBs was vacated, and thereby disposing of the issue. This was confirmed by the Tribunal in the reconsideration decision dated March 7, 2025. We find that the preliminary issues raised by the respondent in the previous decision are determinative of the applicant’s substantive entitlement to an IRB under the Schedule because the result of the preliminary issue was that the applicant was barred from proceeding with the substantive issue hearing. Further, we find that the applicant has not established a basis that would impeach the prior finding.

22We agree with the respondent that res judicata does apply. We find that the 2025 reconsideration has already determined that the substantive issue of IRBs was disposed of in the 2024 decision.

23However, the applicant further argues that if res judicata applies, it should be waived in this instance. We will now turn to consider this argument.

Waiver of Res Judicata and new evidence

24We find that the applicant has not established that res judicata should be waived in this case.

25The applicant argues that if res judicata does apply, it should be waived, since fresh, new, previously unavailable evidence, conclusively impeaches the original result, and also since fairness dictates that the original result should not be binding in the new context.

26As set out in Toronto (City) v. CUPE Local 79, 2003 SCC 63 at para. 52, res judicata can be waived in the following situations:

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.

27The applicant does not argue the first proceeding was tainted by fraud or dishonesty.

There is no fresh, new evidence

28We find that there is no fresh, new evidence in this case that would impeach the original findings.

29The applicant submits that there is new evidence that he agreed to attend a s. 44 assessment in November 2024, but the respondent did not reschedule the assessment. The applicant does not explain how this is new evidence that would impeach the original results.

30The applicant does not direct the panel to any fresh, new evidence which the Tribunal did not previously consider as an exception to res judicata. The applicant argues that this new evidence that he was later willing to attend the IE would impeach the original results because the original decision was based on the fact that he did not attend.

31The respondent submits that 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 further submits that the 2024 decision is a final decision which disposed of the substantive issues.

32The respondent further submits that the applicant seeks to re-litigate the same preliminary issues and substantive issues that were already decided in the previous decisions by filing another application regarding the same issues.

33We find that the applicant’s agreement to attend a s. 44 assessment in November 2024 does not amount to fresh, new evidence because it would be unfair to allow the applicant to attend an assessment after the significant delay. We find that the delay resulted in actual prejudice to the respondent because any s. 44 assessment obtained two and a-half years later would not address the period of entitlement for which benefits were being claimed.

34We find that the applicant has not directed the panel to fresh, new evidence that was previously unavailable that would impeach the original result.

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

35The panel finds that the applicant has not satisfied the Tribunal that fairness requires us to exercise our discretion to waive res judicata.

36The applicant submits that his substantive claim for an IRB should be considered on the principles of fairness and in the interest of justice. The applicant argues that the exercise of res judicata creates an injustice to the applicant. He argues that s. 55 is not a permanent bar to his entitlement to an IRB since he agreed to attend a s. 44 assessment over three years after the denial.

37The applicant further submits that he would meet the post-104 test for entitlement to an IRB, and the respondent is not prejudiced by not having an opportunity to obtain a s.44 assessment regarding his pre-104 entitlement to an IRB.

38The respondent argues that it would be an abuse of process to allow the applicant to re-litigate the same issues which were already decided in the previous decisions. The respondent argues that the applicant was aware from both the Tribunal’s initial and reconsideration decisions that the requests for an IE were valid, and he chose not to attend until after he received the 2024 decision. The respondent submits that assessing the applicant two and a half years later, and outside the pre-104 IRB entitlement period would cause significant prejudice to the respondent. The respondent argues that its ability to assess the applicant for benefits should be close to the original request so that it may determine entitlement to benefits in a timely manner.

39We find that the applicant has not satisfied the panel that fairness requires the Tribunal to exercise its discretion to waive res judicata, on the new evidence that he agreed to attend a s. 44 assessment nearly three years later. We find that res judicata applies to the applicant’s claim for IRBs since it was determined on a final basis at the preliminary hearing in File 24-001015/AABS.

40We find there is no basis to waive the application of res judicata in these circumstances, and the application is dismissed.

PROCEDURAL ISSUES

41Since we have found that the applicant is barred from proceeding with his application pursuant to the doctrine of res judicata, we decline to address the two procedural issues raised by the parties. Although the parties agreed to add a preliminary issue regarding the 2-year limitation period, and the respondent brought a motion to exclude the Insurer Examination (“IE”) reports of Dr. Jacqueline Auguste, Dr. Neema Kasravi and Dr. Christopher Hope, we find these issues are moot.

42Therefore, it is not necessary to decide whether the applicant is barred from proceeding with his application for an IRB based on whether he missed the 2-year limitation period, or whether the IE reports are excluded.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits delayed or owing, interest is not payable.

The applicant is not entitled to an award

44Under s.10 of Reg.664, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant made no submissions in support of his claim for an award. Since no benefits were withheld or delayed, an award is not payable.

The respondent is not entitled to costs

45Under 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.

46In seeking an unspecified amount in costs from the applicant, the respondent made no specific submissions on how the applicant acted unreasonably, frivolously, or in bad faith in pursuing his application. We find the respondent has not met its onus in proving that costs are warranted in this case.

ORDER

47We find that the applicant is barred from proceeding with his application pursuant to the doctrine of res judicata.

48The applicant is not entitled to interest or an award.

49The applicant is not liable to pay costs to the respondent.

50The application is dismissed.