Tina Larose v. Intact Insurance Company, 2026 CanLII 15061

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 25-003994/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:

Tina Larose

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines Aric Bhargava

APPEARANCES:

For the Applicant: Mikolaj Grodzki, Counsel

For the Respondent: May Li, Adjuster Shivani Mehta, Counsel Robbie Brar, Counsel

Court Reporter: Guido Riccini

Held by videoconference: January 26, 2026

OVERVIEW

1Tina Larose (“the Applicant”) was involved in an automobile accident on May 3, 2012, and sought benefits from Intact Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “Schedule”). The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

[2] The preliminary issue to be decided is: i. Is the applicant barred from proceeding to a hearing by the doctrine of res judicata?

SUBSTANTIVE ISSUE IN DISPUTE

[3] The issues in dispute to be decided are: i. Has the applicant sustained a catastrophic (“CAT”) impairment (Criterion 8) as defined by the Schedule?

RESULT

4The applicant is barred from proceeding to a hearing regarding whether she sustained a CAT impairment (Criterion 8) by the doctrine of res judicata.

5As the applicant is barred from proceeding by the doctrine of res judicata this application is dismissed.

BACKGROUND

6The applicant submitted an application for CAT determination (“OCF-19”) dated March 27, 2020 completed by Dr. Ross, psychiatrist, seeking a CAT determination pursuant to Criterion 8, based on a mental and behavioural disorder. A hearing was held before the Tribunal between January 8 to 12, 2024 to determine this issue.

7The applicant submitted a subsequent OCF-19 dated January 18, 2024, completed by Dr. Ross seeking a CAT determination pursuant to Criterion 7 and 8. The OCF-19 indicated that this was a reapplication for a CAT determination and the reason provided on the form was blank. The OCF-19 indicated that the applicant was last seen on January 31, 2020 for the purpose of preparing the application.

8In a decision dated May 3, 2024, the Tribunal issued its decision where the adjudicator determined that the applicant did not sustain a CAT impairment pursuant to Criterion 8. The applicant requested reconsideration of that decision which was dismissed by the Tribunal: see 2024 CanLII 41019 and 2024 CanLII 102108, respectively.

PROCEDURAL ISSUES

9Two motions were addressed at the outset of the hearing. First, the applicant sought to exclude the respondent’s supplementary documents, including the transcripts from the prior hearing. Second, on consent, the parties were seeking a decision on the preliminary issue at this hearing and requested that the hearing of the substantive issue be adjourned to a later date.

Transcripts will not be excluded

10The applicant sought to exclude the transcripts on the grounds that these documents were filed two days past the deadline for productions outlined in the Tribunal’s Case Conference Report and Order (“CCRO”). The respondent submits that the transcripts were in the possession of both parties and as a result there is no prejudice to the applicant. The respondent submits that the documents were not included in its initial document brief by oversight.

11We declined the applicant’s request to exclude the respondent’s document brief because we find that the applicant was in receipt of the transcripts prior to the hearing and as a result there is no prejudice to the applicant.

Adjournment of substantive issue

12On consent the parties request the Tribunal adjourn the hearing of the substantive issue pending the Tribunal’s decision on the res judicata issue. The parties submit it would be more cost effective and if the Tribunal hears evidence regarding the substantive issue it may cause prejudice to the respondent.

13Prior to the hearing, the applicant brought the same motion seeking the same relief which was denied by the Tribunal by motion orders dated January 21, 2026 and January 23, 2026.

14We issued an oral ruling in which we confirmed that the hearing would proceed on the preliminary issue and that at the conclusion of those submissions, we would take a break to decide whether the hearing on the substantive issues would proceed or be adjourned pending the release of the decision on the preliminary issue. At the conclusion of hearing submissions from both parties on the preliminary issue we decided that the hearing on the substantive issue be adjourned to a future date pending the release of our decision.

ANALYSIS

Preliminary Issue - Res Judicata

15We find the conditions of res judicata are met, and the applicant has not demonstrated that res judicata should be waived in this situation.

[16] The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. According to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para 25, there are three preconditions that must be established to apply res judicata. The preconditions are: i. The same question has been decided; ii. The prior decision must have been a final judgement; and iii. The parties to the decision were the same as the parties to the proceedings in which res judicata is raised.

[17] In Toronto (City) v. CUPE Local 79, 2003 SCC 63 (“CUPE”), at para 52, the Supreme Court of Canada identified certain situations where res judicata may be waived: i. The first proceeding is tainted by fraud or dishonesty; ii. Fresh, new evidence is submitted that was previously unavailable that could conclusively impeach the original results; or iii. When fairness dictates that the original result should not be binding in the new context.

The three preconditions to apply res judicata are met

18We find the three preconditions to apply res judicata are satisfied because we have been asked to decide whether or not the applicant sustained a CAT impairment under Criterion 8, which is the same issue determined by the adjudicator in its decision released in May 2024. We also find the parties are the same as the prior application, and the prior application was determined on its merits in the Tribunal’s decision. Further, we find the decision final because the applicant applied for reconsideration which was denied, and she did not seek an appeal of that decision nor apply for judicial review.

There is no basis for res judicata to be waived

19We find that there is no fresh, new evidence submitted that was previously unavailable that would conclusively impeach the original results of the Tribunal’s previous decision for the following reasons.

20The parties agree the first proceeding is not tainted by fraud or dishonesty.

21The applicant submits that res judicata should be waived in this matter on the basis of fresh, new evidence and the principle of fairness.

22The applicant’s submissions were heavily focussed on her disagreement with the adjudicator’s decision and why the adjudicator was wrong. The applicant also argues that the Schedule does not restrict her to a single CAT application and relies on Roy v. Primmum Insurance, 2020 ONSC 3886 (“Roy”) where the court states that “An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.”

23The respondent submits the Tribunal made a dispositive finding on the evidence previously and there is no fresh, new evidence and the applicant’s evidence is from prior to the hearing. The respondent agrees that insureds can make more than one application seeking a CAT designation, however, it argues the applicant seeks to re-litigate the issue and it and maintains that the Schedule contemplates re-application, not re-litigation.

24We find the applicant did not provide any explanation why the decision or the reconsideration was not appealed, despite having a statutory right of appeal to do so under section 11(6) of the Licence Appeal Tribunal Act, 1999 (the “LAT Act”), or an application for judicial review.

25We find that there is no fresh, new evidence submitted that was previously unavailable that would conclusively impeach the Tribunal’s prior decision for the reasons outlined below.

26We find the second OCF-19 reapplying for CAT status under Criterion 8 was not based on fresh evidence, that would conclusively impeach the Tribunal’s decision. Dr. Ross indicated on the form that the last time they had seen the applicant was in January 2020, which was evidence already considered and rejected by the adjudicator in their decision. Also, there was no explanation on the form explaining why a second application was being made under Criterion 8. We find that the applicant did not point us to any persuasive new evidentiary foundation to support the submission of the second OCF-19.

27We find that the fresh evidence referred to in the applicant’s submissions would not conclusively impeach the Tribunal’s prior decision. The applicant relies upon the occupational therapy assessment prepared by Caryn Kwai-Pun, occupational therapist; the social work biopsychosocial assessment prepared by Kamilla Riabko, registered social worker; the psychiatry assessment prepared by Dr. Ross; as well as an approval letter from the Ontario Disability Support Program (“ODSP”) dated September 11, 2025. We do not find that any of this evidence would conclusively impeach the Tribunal’s decision for the reasons noted below.

28We find that in the Tribunal’s decision in May 2024, the adjudicator made various findings of fact and law based on the totality of the evidence. In paragraph [48] the adjudicator preferred the opinion of the respondent’s psychiatric assessor over Dr. Ross, the applicant’s assessor, because it was found to be more consistent with the medical evidence. The adjudicator also found the applicant’s testimony regarding her impairments and the functional limitations was due to physical pain as opposed to a mental or behavioural disorder. In addition, the adjudicator found that there was little medical evidence of a psychological impairment in the four years post-accident.

29We also find that in paragraphs [52] and [53] of the May 2024 decision, the adjudicator expressly rejected Dr. Ross’ methodology, and the adjudicator notes Dr. Ross’ report and methodology “blends the applicant’s pain and psychological condition without removing from consideration, to any extent possible, any physical causes of her impairment as recommended in the Guides and reinforced in Pastore.” Dr. Ross’ approach was considered and not accepted by the adjudicator. The adjudicator determined that Dr. Ross did not follow the AMA Guides in rendering their opinion and that the doctor stepped outside of their scope of practice in opining on neurological issues. The applicant also argues that the adjudicator was wrong in his analysis of Dr. Ross’ reports and that the doctor’s methodology was correct. We find that the applicant is attempting to relitigate her position which was already considered by the Tribunal and chose not to file an appeal or judicial review.

30We find the updated report of Dr. Ross is not fresh evidence which would conclusively impeach the Tribunal’s decision because the doctor employs the same methodology in completing the assessment and the findings outlined in the report establish several improvements in the applicant’s condition as opposed to deterioration. Further, Dr. Ross’ updated report does not diagnose the applicant with any new psychological impairments. In our view this is not fresh evidence that would impeach the Tribunal’s decision.

31In addition, we find the report of Ms. Riabko does not meet the criteria of fresh evidence which would impeach the Tribunal’s decision. In her report, Ms. Riabko states that she had reviewed reports from previous assessors to be used as a baseline for comparison and stated, “there appears to be no significant improvement or decline in mental and physical health, beyond changes attributable to natural progression over time and naturally occurring health developments.” We find Ms. Riabko’s statement inconsistent with the applicant’s position that there was a deterioration in the applicant’s condition and that it would not likely impeach the Tribunal’s decision.

32Finally, much was made by the applicant that the occupational therapy reports supports a deterioration in function. We find that the findings in the occupational therapy reports support the applicant’s self-reports regarding function and would not likely impeach the Tribunal’s decision because there is no finding regarding CAT status. Moreover, as highlighted above, the adjudicator already made findings of fact in the May 2024 decision regarding the applicant’s testimony regarding her impairments and functional limitations which the adjudicator determined was based on physical pain as opposed to a mental or behavioural impairment. The applicant has not directed us to the evidence which would impeach these findings.

33We find the adjudicator in the Tribunal’s prior decision and the reconsideration decision fully engaged with the evidence previously and the reports relied upon in support of this application is not fresh, new evidence.

34We also place little weight on the applicant’s ODSP approval because there is no explanation (i.e. physical or psychological impairments) for why the application was being approved. Consequently, we find the ODSP approval is not relevant to whether she sustained a CAT impairment under Criterion 8. In addition, as highlighted by the respondent the medical records submitted to ODSP were before the Tribunal and were considered by the adjudicator in its analysis regarding Criterion 8.

[35] We find the case law the applicant relies upon is not particularly helpful to her claim. The applicant relies on Ishak v. Intact Insurance Company, 2023 CanLII 107281 (ON LAT); Zhu v. Co-operators General Insurance Company, 2025 ONLAT 23-003306/AABS, Abboud v. Intact Insurance Co., 2025 ONSC 3416, Machaj v. RBC General Insurance Company, 2016 ONCA 257, and Garvey v. Economical Mutual Insurance Company, 2023 CanLII 34463. i. In Ishak, the adjudicator determined that res judicata did not apply because the original dispute involved whether the insured’s impairments were in the MIG, whereas the new dispute involved whether the insured sustained a CAT impairment. ii. In Zhu and Abboud the applicant highlights the basis for res judicata to be waived and a claim of catastrophic impairment must be supported by an opinion from a physician. In the applicant’s case the issue is whether the evidence is fresh, new evidence and here the applicant has not directed us to fresh, new evidence. iii. In Machaj the applicant highlights that CAT is a designation, not a benefit and that is not at issue here. iv. In Garvey the adjudicator waived res judicata because the issue in dispute was different in conjunction with fresh, new evidence, however, the distinguishing feature here is that the issue in dispute is the same and there is no fresh, new evidence.

36In contrast, the respondent relies on the Tribunal’s decisions in Campbell v. Definity Insurance Company, 2025 CanLII 89887 (ON LAT) and Syed v. Security National Insurance Company, 2023 CanLII 26958 (ON LAT). We find the case scenarios in these decisions more applicable to the present case. For example, the facts in Campbell are very similar to this case as the insured filed a second OCF-19 following the hearing seeking a CAT designation under the same criteria. The adjudicator determined that res judicata should not be waived and that the insured was relitigating their position. Similarly in Syed, despite filing an OCF-19 seeking CAT status under different criteria, the adjudicator determined that res judicata should not be waived because the adjudicator made findings of fact in their decision which would not be impeached by the new evidence relied upon.

37We acknowledge and agree with the applicant that the Schedule does not preclude multiple applications for CAT status. However, for the reasons noted above we find that the applicant has not demonstrated there is fresh, new evidence that would conclusively impeach the Tribunal’s prior decision on this issue.

38For the reasons noted above, we find no basis in this situation to waive res judicata and find the applicant is barred from proceeding with her application seeking a CAT determination under Criterion 8.

CONCLUSION AND ORDER

[39] For all the above reasons, we make the following order: i. The applicant is barred from proceeding to a hearing by the doctrine of res judicata. ii. Accordingly, the applicant may not proceed to a hearing on the substantive issue. iii. The application is dismissed.