Licence Appeal Tribunal File Number: 25-004179/AABS-PI
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:
Neila Paesano
Applicant
and
Co-operators General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Imtiaz Hosein, Counsel
For the Respondent:
Daniel M. Himelfarb, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Neila Paesano (“the Applicant”), was involved in an accident on September 1, 2018 and sought benefits from Co-operators General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The Applicant claimed to have sustained a catastrophic impairment as a result of the accident, and claimed entitlement to attendant care benefits, income replacement benefits, and other medical and rehabilitation benefits. The Applicant’s claims were denied by the Respondent, and she submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
2The parties were unable to resolve the dispute, and the application proceeded to a hearing. Following the hearing, Adjudicator Hines issued a decision, dated October 20, 2023, in which she found that the Applicant had not sustained a catastrophic impairment, was barred from claiming income replacement benefits, was entitled to attendant care benefits of up to $905.34 per month, and was not entitled to the medical and rehabilitation benefits claimed (Paesano v. Coseco Insurance Company, 2023 CanLII 96371 (ON LAT)) (“the initial decision”).
3The Applicant sought judicial review of the initial decision. On June 2, 2025, the application for judicial review was dismissed by the Divisional Court and the initial decision was upheld (Paesano v. Coseco Insurance Co., 2025 ONSC 3245 “the Divisional Court decision”). The Divisional Court decision found that the rationale of the Tribunal in determining that the Applicant had not sustained a catastrophic impairment under criterion 6 was reasonable, coherent, and consistent. Regarding criteria 7 and 8, the Divisional Court concluded that it was a reasonable outcome for the Tribunal to determine that the Applicant had not sustained a catastrophic impairment. At last, the Divisional Court concluded that it found nothing unfair in the procedure at the hearing and that the Tribunal was within its purview to control its own process and procedure in coming to the determination that it did.
4The Applicant continues to maintain that she sustained a catastrophic impairment as a result of the accident. The Respondent continues to disagree.
5On March 27, 2025, the Applicant filed a new application with the Tribunal for resolution of the dispute as to whether she sustained a catastrophic impairment as a result of the accident. In response to the current application, the Respondent raised a preliminary issue. It submits that the applicant is barred from proceeding to a hearing on the substantive issue by the doctrine of res judicata.
PRELIMINARY ISSUE IN DISPUTE
6The preliminary issue to be decided is:
i. Is the Applicant barred from proceeding to a hearing by the doctrine of res judicata?
RESULT
7I find that this application is subject to the doctrine of res judicata and the Applicant is barred from proceeding to a hearing on the substantive issue of whether she sustained a catastrophic impairment as a result of the accident.
CONSTITUTIONAL CHALLENGE
8The parties participated in a case conference with respect to this current application. The Respondent properly raised the preliminary issue at the case conference and the parties agreed on consent to address the preliminary issue in writing prior to a videoconference hearing on the substantive issues. Neither party sought to change the format of the hearing following the case conference via motion, and the Case Conference Report and Order (“CCRO”) giving rise to this hearing does not indicate that the Applicant objected to this procedural choice or proposed an alternative format.
9The Respondent tendered its submissions and evidence for the preliminary issue hearing, on time and as ordered by the Tribunal.
10After the Respondent tendered its submissions and evidence, the Applicant sent a notice of a constitutional question to the Attorney General of Ontario, and the Attorney General of Canada (“the notice”) pursuant to Rule 11. The notice confirmed the Applicant’s intention to raise a challenge to the constitutionality of the Tribunal’s Practice Direction on Preliminary Issue Hearings (“the Practice Direction”), and specifically, its practice of addressing preliminary issue hearings in writing.
11On the same day she submitted the notice, the Applicant tendered her submissions and evidence in response to the Respondent’s preliminary issue submissions, and regarding her constitutional challenge.
12To the Applicant, the Tribunal’s practice of addressing preliminary issue hearings in writing is a violation of section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). The Applicant submits that the Tribunal’s practice, combined with the direction in the CCRO to bar affidavit evidence at the preliminary issue hearing, deprives her of a meaningful opportunity to be heard in a proceeding that directly affects her life, psychological integrity, and access to essential medical care.
13The Applicant adds that the mandate to proceed in writing and barring affidavit evidence has the combined effect of preventing her from calling any witnesses or tendering evidence from her treating physicians and medical experts regarding the deterioration in her condition, including explanations of how continuing or recurring diagnoses demonstrate a material change in her health status. She further submits that the violation of her right to a fair proceeding is compounded by the CCRO, which barred affidavit evidence at the preliminary issue hearing. To the Applicant, this is a denial of a meaningful opportunity to present her case and breaches section 7 of the Charter, which she submits protects her right to a fair hearing.
14The Applicant submits that section 7 is invoked because of the potential denial of more than one million dollars in accident-benefits funding, which directly threatens her security of the person, as recognized in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R 46 (“New Brunswick”). In New Brunswick, it was determined that the province’s practice of restricting legal aid in custody proceedings was a violation of section 7 of the Charter because the parent did not have an opportunity to present their case effectively after being denied access to counsel.
15The Applicant submits that the absence of discretion to allow oral hearings where credibility or complex medical issues are central renders the Practice Direction arbitrary and overbroad. She submits it denies her from an individualized assessment of fairness and meaningful participation in the proceedings that determine access to essential healthcare funding, thereby breaching section 7 of the Charter.
16The Applicant asks that the Tribunal declare that: its Practice Direction is unconstitutional and of no force or effect; that the Tribunal order barring affidavit evidence is unconstitutional and of no force or effect; and that the preliminary issue be heard by videoconference before the Tribunal at a date and time to be fixed by the Registrar.
17Neither the Attorney General of Ontario, nor the Attorney General of Canada have responded to the notice.
18In response, the Respondent is critical of the timing of the Applicant’s constitutional challenge. It highlights that the constitutional challenge was not raised at the case conference and is only being raised on the day submissions were being made. The Respondent further submits that the Applicant’s submissions for the preliminary issue hearing do not include a discussion of the constitutional issue (the submissions on the constitutional challenge were appended to the Applicant’s submissions), suggesting that the constitutional challenge is a separate matter from the preliminary issue hearing. Finally, the Respondent submits that the Tribunal does not have jurisdiction to consider constitutional questions and that such an issue is within the purview of the Superior Court of Justice, but it cited no jurisprudence or legislative authority for this position.
19I agree with the Applicant that the Tribunal has the jurisdiction to consider the constitutional question pursuant to Rule 11, however I disagree that the Practice Direction violates her section 7 rights.
20The Tribunal is a court of competent jurisdiction under section 24(1) of the Charter. The Tribunal’s jurisdiction is set out in section 5.1(4) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sched. G. (“the LAT Act”). This states that the Tribunal has jurisdiction to determine all questions of fact or law that arise in the matters before it. Section 3(2) of the LAT Act states that, except when limited by statute, the Tribunal has all the powers that are necessary or expedient for carrying out its duties. This confirms that the Tribunal has very broad jurisdiction and powers to deal with any questions of law or fact that come before it. While this jurisdiction is focused on disputes under s. 280 of the Insurance Act, the Tribunal has the authority to decide questions of law, rendering it a court of competent jurisdiction for the purpose of granting remedies under section 24(1) of the Charter, in accordance with R. v. Conway, 2010 SCC 22, [2010] 1 SCR 765.
21The Tribunal has the authority to grant the remedy sought by the Applicant. The Applicant seeks a determination that the Tribunal’s typical practice of addressing preliminary issues in writing is unconstitutional and of no force or effect. Pursuant to section 25.1 of the Statutory Powers Procedure Act, RSO 1990, c S.22 (“the SPPA”), the Tribunal may make rules governing the practice and procedure before it. In having the authority to make rules governing its practice and procedure, the Tribunal then also has the authority to strike down its own rules or practices if it deems either to be unconstitutional. Accordingly, the Tribunal is a court of competent jurisdiction because it has broad jurisdiction to deal with any question of law or fact that comes before it and can strike down the rules governing its practice, if necessary, such as where a rule violates a person’s rights preserved under the Charter.
22While I agree with the Applicant that the Tribunal is a court of competent jurisdiction to hear her challenge under the Charter, I disagree with the Applicant that the Tribunal’s practice of addressing preliminary issues in writing violates her section 7 Charter right.
23To demonstrate a violation of section 7 of the Charter, the Applicant must first establish that the law interferes with, or deprives them of, their life, liberty and security of the person. As was the outcome in New Brunswick, a person’s opportunity to present their case fairly and effectively is a protected right under section 7 of the Charter. If successful in demonstrating that the law interferes with, or deprives the Applicant of her life, liberty and security of the person, she must then demonstrate that the deprivation is not in accordance with the principles of fundamental justice, including the right to a meaningful opportunity to present her case.
24In this case, the Applicant has not met the first prong of the test in establishing that the Tribunal’s Practice Direction is a violation of her section 7 rights. As I will outline, I find that the Practice Direction is a “soft law” guideline that can be adapted to fit the needs of the individual cases before it. Therefore, the Practice Direction does not interfere with the Applicant’s ability to meaningfully present her case because she has not demonstrated that the Practice Direction is a law that is binding upon adjudicators, nor that the Practice Direction mandates that all preliminary issue hearings proceed in writing only.
25I find that the Applicant’s consent to the hearing format greatly undermines her overall argument. Indeed, the Applicant and Respondent agreed to the format of the hearing, including hearing the preliminary issue in writing. At no point after that agreement, and before tendering submissions, did the Applicant raise any issue with the format. The CCRO is silent on this issue. Likewise, the Applicant never filed a motion to change the format of the hearing or seek any accommodation in presenting her evidence prior to this hearing.
26The Applicant’s case would be significantly different had she requested an alternative format, but nevertheless had the written format imposed upon her by the Tribunal, or if she filed a motion to change the format of the hearing, but that request was denied. This is where the Applicant’s case differs from New Brunswick, where the parent sought legal aid in their custody case, but the aide was denied, which engaged section 7 of the Charter. Here, the Applicant had the opportunity to request a different format for the preliminary issue hearing, but never made the request and, instead, consented to proceed in writing.
27Nevertheless, I find that neither the Practice Direction on its face nor the Tribunal’s typical practice of conducting preliminary issue hearings in writing breach the Applicant’s Charter rights. As a starting point, contrary to the Applicant’s submissions, there is no “mandate” requiring that all preliminary issue hearings be conducted in writing or that affidavit evidence is not permitted. The preamble for the Practice Direction expressly states that it was created to provide general information only and to supplement the Licence Appeal Tribunal Rules (“the Rules”). The preamble also clearly states that statutes, regulations, and the rules and orders of the Tribunal will always take precedence over any contrary information in the Practice Direction. As a “soft law” document, this means that the Practice Direction is not a binding document or mandate and is intended to provide parties with a general understanding of Tribunal practices to assist them in navigating its processes. The Practice Direction serves as a guide for preliminary issue hearings and is secondary to enabling statutes, general procedural codes and the Tribunal’s Rules, which collectively provide adjudicators with wide discretion to order a matter to proceed in a particular format based on context and proportionality.
28The Practice Direction does not breach the Applicant’s Charter rights because there is nothing in it that bars an adjudicator from deviating from the suggestions in the Practice Direction. That is, the adjudicator maintains the discretion to proceed in accordance with the Practice Direction, or not, and nothing in the Practice Direction changes this. Moreso, there is nothing in the Practice Direction that precludes a party from requesting an alternative path to resolve a dispute. Such alternatives include, but are not limited to, changing the format of the preliminary issue hearing, permitting affidavit evidence, permitting witness testimony, or persuading the Tribunal that a preliminary issue hearing is not appropriate. However, the Tribunal is unlikely to consider any alternative path without a request from a party, which was never made in this case.
29Having found that the Practice Direction is not binding upon adjudicators, coupled with the fact that the Applicant agreed to the format of this hearing, I find that the Applicant has not met the threshold test to establish a breach of her rights because she has not demonstrated that the law interferes with, or deprives her of, her life, liberty or security of the person. Accordingly, I find that the Tribunal’s Practice Direction on Preliminary Issue Hearings does not violate the Applicant’s rights enshrined in section 7 of the Charter.
BACKGROUND TO THE PRELIMINARY ISSUE
30The Applicant was injured in an automobile accident and applied to the Respondent for a determination that her injuries are catastrophic, pursuant to criterion 6 (physical whole person impairment “WPI”), criterion 7 (combined physical and psychological WPI), and criterion 8 (mental and behavioural impairments). The Respondent denied the Applicant’s claim and the Applicant applied to the Tribunal for resolution of the dispute.
31In the initial decision, dated October 20, 2023, Adjudicator Hines assessed the evidence and concluded that the Applicant did not meet the criteria for a catastrophic impairment determination under criterion 6, 7, or 8. Adjudicator Hines noted that the Applicant had a significant pre-accident medical history which included similar injuries in a 2016 motor vehicle accident, including a concussion which resulted in post-concussion syndrome, and impairment to her cervical spine resulting in bilateral shoulder pain and arm numbness, and was previously diagnosed with major depressive disorder and anxiety.
32On the issue of criterion 6, Adjudicator Hines rejected the Applicant’s evidence because the ratings assigned were not supported by the methodology in the AMA Guides, or in the Applicant’s medical record. As a result, the adjudicator did not accept the impairment ratings for the thoracolumbar spine, tinnitus, left shoulder, hips, headaches, mastication and glutination, and dizziness.
33On the issue of criterion 7, Adjudicator Hines found that the Applicant’s psychiatric assessor inflated the impairment rating and rejected the findings because of the inflated rating. Adjudicator Hines found that the Applicant’s answers to certain psychiatric evaluations were inconsistent with her level of function, but that her level of function was not clarified by the assessor and contradicted by the evidence accepted at the hearing.
34On the issue of criterion 8, Adjudicator Hines concluded that the Applicant did not demonstrate that she suffers from a marked impairment in three of the four spheres of functioning. The Applicant’s catastrophic impairment report concluded that she suffered from a marked impairment in social functioning, concentration persistence and pace, and adaptation. However, Adjudicator Hines disagreed and found that the Applicant did not suffer a marked impairment in the sphere of social functioning on the basis that the Applicant continued to work for approximately three years following the accident, communicated with her neighbour by text and occasionally met for coffee, and that her reporting regarding her strained relationships with family members was inconsistent. Having found that the Applicant never sustained a marked impairment in the sphere of social functioning, Adjudicator Hines concluded that the Applicant was unable to meet the threshold for a catastrophic impairment pursuant to criterion 7 because she did not suffer from 3 or more marked impairments in at least four areas of function, nor did she suffer from an extreme impairment in any sphere.
35The Applicant sought judicial review of the initial decision and, on June 2, 2025, the application for judicial review was dismissed by the Divisional Court and the initial decision was upheld. As noted previously, the Divisional Court decision found that the rationale of the Tribunal in determining that the Applicant had not sustained a catastrophic impairment under any criteria was a reasonable outcome and there was nothing unfair in the procedure at the hearing and that the Tribunal was within its purview to control its own process and procedure. The Applicant sought leave from the Ontario Court of Appeal, but it is my understanding that leave to appeal was denied.
36On March 27, 2025, before the Divisional Court decision was released, the Applicant again applied to the Tribunal to resolve a dispute as to whether she sustained a catastrophic impairment (“the current application”). This preliminary issue hearing stems from the current application.
37The current application is with respect to the same accident that was addressed in the initial decision and by the Divisional Court. In the current application, the Applicant again seeks a determination that she sustained a catastrophic impairment as a result of the subject accident, but only pursuant to criterion 7 and 8 of the Schedule.
38On August 27, 2025, after filing the current application and after receiving the Divisional Court decision, the Applicant formally applied to the Respondent again for a determination that she sustained a catastrophic impairment. The new application for a catastrophic impairment determination was submitted to support the Applicant’s current application to the Tribunal. The Respondent denied the application on the grounds that it previously denied that the Applicant sustained a catastrophic impairment, that the Tribunal decision of Adjudicator Hines concluded that the Applicant did not meet the threshold for a catastrophic impairment, and that no compelling evidence was provided to suggest that there has been a material change in the Applicant’s condition in relation to her accident-related impairments.
39The Respondent raised the issue of res judicata at the case conference related to the current application, and again in this preliminary issue hearing. It submits that the issue of whether the Applicant sustained a catastrophic impairment under criterion 7 and 8 was previously decided by the Tribunal and confirmed by the Divisional Court, and that a material change in circumstances has not occurred in this relatively short period of time in order to warrant another application for a catastrophic impairment determination.
40The Applicant contends that there has been a material change in her circumstances, prompting her to submit a new application for a determination of a catastrophic impairment. The Respondent denied the application, citing the findings in the prior litigation, and on the basis that the Applicant’s new report does not provide any new information.
41The Applicant further submits that justice dictates that her application proceeds because her initial claim for a catastrophic impairment pursuant to criterion 7 was never determined on the merits. The Applicant argues that the Tribunal’s initial decision was not a decision on the merits because she believes the Tribunal disregarded the expert evidence on criterion 7 due to defects in the opinion, and because no psychological impairment rating was assigned.
ANALYSIS
42For the following reasons, I find that the Applicant may not proceed with her application by operation of the doctrine of res judicata.
43The doctrine of res judicata precludes matters that had previously been decided from being heard again to prevent an abuse of process. According to Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, three criteria must be assessed to apply res judicata: the same question has been decided; that the decision was final; and that the parties were the same in both actions.
44Res judicata may be waived in certain situations, however, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process. Waiving res judicata would permit the Applicant to proceed with her application despite the three criteria for res judicata being met, in accordance with the instances outlined in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63 (“C.U.P.E.”).
45Res judicata can be waived in situations where: the first proceeding is tainted by fraud or dishonesty; fresh, new evidence submitted that was previously unavailable that would conclusively impeach the original results; or when fairness dictates that the original result should not be binding in the new context.
The three criteria for res judicata are met
46For the following reasons, I find that the three criteria for res judicata are met.
47There is no dispute that the issue of whether the Applicant sustained a catastrophic impairment was previously addressed by the Tribunal in the initial decision. In that decision, the central issue was whether, as a result of the September 1, 2018 accident, the Applicant sustained a catastrophic impairment under criterion 6, 7, and/or 8. Adjudicator Hines’ decision was upheld in the Divisional Court decision.
48Here, the current application is with respect to the same accident, and two of the same three issues of whether the Applicant sustained a catastrophic impairment pursuant to criteria 7 and 8. Therefore, the first criterion for res judicata is met because the same question has been decided by the Tribunal.
49I find that the initial decision and the Divisional Court decision are final judgements on the merits, thus the second prong of the test is met. The initial decision is not an interim or interlocutory decision. The initial decision addressed the issues in dispute in full and left no ongoing issues in dispute. The Applicant sought a reconsideration of the initial decision following its release, and the Tribunal denied the Applicant’s reconsideration request. Therefore, the Tribunal decision is a final decision on the issues.
50Moreover, I find that the Divisional Court decision is a final judgement. The Divisional Court heard the Applicant’s application for judicial review and dismissed it. The Applicant’s subsequent leave to appeal request, and fresh application to the Tribunal does not upset the fact that the initial decision and the Divisional Court decision are both final decisions. Accordingly, I find that the second criterion for res judicata is met.
51I find that the same parties are involved in the current application as were involved in the initial decision, the Divisional Court decision, and the current proceeding, meeting the third prong of the test. All the matters involve the same Applicant and the Respondent. Neither party argues that the parties are different. Accordingly, the third criterion for res judicata is met.
Res judicata should not be waived in this circumstance
52I find that res judicata should not be waived in this circumstance.
53As noted, res judicata can be waived in certain circumstances, as outlined in C.U.P.E. This can occur when the first proceeding is tainted by fraud or dishonesty; where fresh, new evidence is submitted that was previously unavailable that would conclusively impeach the original results; or when fairness dictates that the original result should not be binding in the new context. However, in C.U.P.E the Supreme Court cautioned that there can be no assumption that relitigation will yield a more accurate result than the original proceeding and as a result carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process.
54Up front, I note that there are no allegations of fraud or dishonesty with respect to the prior hearing. Accordingly, this does not favour waiving res judicata. Instead, the Applicant relies on the other two scenarios to waive res judicata. First, the Applicant claims a material change in circumstances since the initial hearing. Second, the Applicant submits that the overall justice of the case dictates that the original result should not be binding in the new context.
New evidence does not conclusively impeach the original result
55I find that the new evidence does not conclusively impeach the original result.
56To be successful in waiving res judicata, the Applicant must provide new evidence which conclusively impeaches the original result. I agree that an insured may make subsequent applications to their insurer for a determination that they sustained a catastrophic impairment as a result of the accident. This is confirmed by the Ontario Court of Appeal decision in McLinden v. Payne, 2011 ONCA 439, which held that a subsequent application may be made on the same criterion if there is evidence of a material change in circumstances such that the insurer is not simply being asked to consider the same condition already denied.
57In Penny v. Royal & Sun Alliance Insurance Company of Canda, 2006 CanLII 23942 (ONSC) (“Penny”), submitted by the Respondent, the Court was asked to consider whether a new medical report constituted new evidence that would conclusively impeach the original result. The Court opined that the jurisprudence supported that new evidence or fact must entirely change the aspect of the case, that the new evidence was not and could not by reasonable due diligence have been ascertained, and that it would have been sufficient to have changed the whole aspect of the case. I find Penny relevant to this matter because the Court was critical of the strategy of introducing new evidence after obtaining an unsatisfactory result in the first instance where the unsuccessful party secured better medical evidence in an attempt to bolster and improve their case. The Court found that allowing the new evidence in would effectively invite every dissatisfied party to re-litigate their case and make a mockery of the principle of finality in litigation.
58With the Court’s direction from Penny in mind, I find that the evidence does not support a finding of a material change in the Applicant’s mental and behavioural impairments that conclusively impeaches the initial decision.
59The Applicant submits that a material change in her circumstances occurred with respect to her mental health. She relies on a report by Dr. E. Gavett-Liu, psychiatrist, dated August 6, 2025, and various medical notes following the initial decision, and submits that the Tribunal’s initial decision no longer reflects her level of impairment.
60The Applicant highlights the following items in her medical records as evidence of a material change in circumstances:
i. On January 8, 2024, the Applicant was referred to CAMH and was encouraged to contact her treating neuropsychiatrist;
ii. On January 12, 2024, the Applicant had what was referred to by a nurse practitioner as a mental health crisis and advises the Applicant to attend the hospital;
iii. On January 13, 2024, the Applicant was admitted to the hospital due to suicidal ideation and remained there for 11 days;
iv. On August 12, 2024, the Applicant attended at the hospital emergency room due to re-emergent suicidal ideation and was not discharged home until the following day, after safety planning took place;
v. On February 11, 2025, the Applicant’s treating neuropsychiatrist prescribed medication to reduce the Applicants’ suicidality;
vi. On May 12, 2025, the Applicant’s family physician noted that the Applicant was experiencing suicidal ideation again;
vii. On June 19, 2025, the Applicant’s family physician noted that the Applicant was experiencing suicidal ideation again; and
viii. On June 23, 2025, the Applicant was noted to be taking the medication prescribed on February 11, 2025, with the intention of reducing her suicidal ideation.
61The Respondent submits that the initial decision considered the Applicant’s suicidal ideation and that there is no material change in her condition since then based on the evidence provided. The Respondent further submits that there is nothing in the new catastrophic impairment report, by Dr. E. Gavett-Liu, dated August 6, 2025, that speaks to a material change in the Applicant’s mental health since the initial decision. The Respondent submits that there is no evidence of a material change in her suicidal ideation, as the Applicant has never acted on such feelings. It submits that the medical records submitted do not support any acute safety issues or suicidality but are evidence of fluctuations in mood. The Respondent contends that the Clinical Notes and Records (CNRs) of Dr. R. Dmytryshyn, the Applicant’s family physician, do not speak to active suicidal ideation and are in line with the balance of the Applicant’s medical records regarding her post-accident mental health.
62The Respondent highlights that the Applicant has not been diagnosed with a new mental or behavioural impairment. It notes that the diagnoses of Major Depressive Disorder, Somatic Symptom Disorder, and Post-traumatic Stress Disorder contained in Dr. Gavett-Liu’s report remain the exact same as the diagnoses offered by the Applicants’ treating neuropsychologist, Dr. L. Powers, and Dr. Kiraly, psychiatrist, one of the authors of her catastrophic impairment assessment report, dated August 11, 2022 that was the subject of the initial decision. Moreover, the Respondent submits that the scores provided by Dr. Gavett-Liu in 2025 mostly fall below the scores rendered by Dr. Kiraly in 2022. Specifically, the Respondent notes that the Applicant’s Global Assessment of Functioning (“GAF”) score is similar, or slightly worse, in the Gavett-Liu report, but that the Applicant’s Brief Psychiatric Rating Score (“BPRS”) score is significantly lower than Dr. Kiraly’s, showing reduced mental health impairment, not increased.
63I agree with the Respondent and find no material change in the Applicant’s mental and behavioural impairments that would warrant waiving the doctrine of res judicata. The examples of suicidal ideation listed by the Applicant in her submissions for this preliminary issue hearing are similar to the complaints outlined in the initial decision and are not a material change in her circumstances. In the initial decision, Adjudicator Hines addressed suicidal ideation and noted that the medical record did not include any active intent, and that no treating practitioner supported ongoing supervision due to the Applicant being a threat to herself. Adjudicator Hines’ finding is also consistent with the new reports highlighted by the Applicant, which are in keeping with a pattern of suicidal ideation that was at issue in the initial decision. None of the fresh records provided by the Applicant conclusively impeach the results of the initial decision.
64The initial decision considered the Applicant’s suicidal ideation when it concluded that the Applicant did not sustain a catastrophic impairment. In paragraph 16, Adjudicator Hines admitted evidence into the hearing regarding the Applicant’s strong thoughts of suicidal ideation and her admission to the hospital for 17 days as a result of her suicidal ideation. At paragraph 73, Adjudicator Hines considered suicidal ideation when assessing the Applicant’s impairments in the sphere of social functioning. Lastly, at paragraph 91 of the initial decision, Adjudicator Hines considered the Applicant’s suicidal ideation when determining whether she required around-the-clock supervision due to being a safety threat to herself and concluded that she did not require such supervision.
65Adjudicator Hines discussed the Applicant’s mental and behavioural impairments at great length in the initial decision. For example, her analysis of whether the Applicant sustained a catastrophic impairment under criterion 7 is 11 paragraphs long, and more than eight paragraphs long regarding criterion 8. At paragraph 63 of the initial decision, Adjudicator Hines concluded that a 40% WPI rating under criterion 7 was inflated because the assessor failed to consider the Applicant’s continued ability to drive to and from work for almost three years post-accident, and that she independently walks her dog, visits her father, and goes to the grocery store, which is more consistent with a mild impairment rather than a severe impairment. Similarly, at paragraph 64, Adjudicator Hines highlighted that the evidence supported a finding that the Applicant continues to have a close relationship with her family members that is more compatible with a mild impairment.
66I find that Dr. Gavett-Liu’s impairment ratings are similar to, or possibly less than, the prior ratings, which suggests that the Applicant has not sustained a material change in circumstances. In the initial decision, the Applicant relied on the report of Dr. Kiraly, psychiatrist, dated August 11, 2022, which concluded that she sustained marked impairments in three out of four spheres and assigned a WPI score of 40% under criterion 7. In the Applicant’s new report by Dr. Gavett-Liu, dated August 6, 2025, it concludes that the Applicant sustained a 20% WPI under criterion 7, but marked impairments in all four spheres of function. That is, the Applicant’s WPI rating went down following the initial decision, but she gained an additional marked impairment under criterion 8. I am unable to reconcile how the offsetting decreased WPI under criterion 7 with an additional marked impairment under criterion 8 represents a material change in the Applicant’s circumstances since the initial decision.
67Even if I were to accept that the Applicant’s suicidal ideation is a material change, this does not conclusively impeach the findings in the initial decision. Adjudicator Hines’ decision accepted that the Applicant exhibited some suicidal ideation but concluded that none of the evidence established an active threat to the Applicant. Adjudicator Hines also noted in the initial decision that the Applicant never provided an opinion from any of her treating practitioners recommending supervision because the Applicant is a safety threat to herself.
68I find the new report by Dr. Gavett-Liu does not demonstrate a material change in circumstances. As noted by the Respondent, Dr. Gavett-Liu never commented on any change in circumstances during the period between August 11, 2022, when the Applicant’s initial catastrophic impairment reports were issued, and Dr. Gavett-Liu’s assessment via videoconference on May 20, 2025 that resulted in his report.
69Further, it appears Dr. Gavett-Liu’s assessment and report is a new opinion based on the Applicant’s prior catastrophic impairment assessment reports. Dr. Gavett-Liu did not actually conduct a situational assessment for the report and, instead, relied on the previous functional assessments dated March 14 and 16, 2022, conducted as part of the initial catastrophic impairment assessments procured by the Applicant. Using the situational assessments from the previous catastrophic impairment assessments further indicates that there has not been a material change in the Applicant’s condition since the initial decision, let alone a material change that conclusively impeaches the initial decision.
70Accordingly, I find that the Applicant has not demonstrated a material change in her circumstances which conclusively impeaches the initial decision.
No material change in the Applicant’s physical impairments
71I similarly find that the Applicant has not experienced a material change in her physical impairments that would conclusively impeach the result of the initial decision.
72From a physical perspective, Adjudicator Hines found that the Applicant sustained various impairments as a result of the accident. At paragraph 47, Adjudicator Hines acknowledged that the Applicant sustained impairments to her neck, low back, right shoulder, cognitive impairments, and sleep and medication impairments. The Applicant’s catastrophic impairment reports and evidence were analysed by Adjudicator Hines, and paragraphs 49 to 53 of the initial decision discuss how the Applicant’s physical impairment rating of 51% WPI in her initial catastrophic impairment reports was inflated and concluded that a lower rating of 27% WPI was warranted. Though central to this preliminary issue decision, I acknowledge that Adjudicator Hines never commented on whether the Applicant suffers from incontinence.
73With respect to her physical health, the Applicant submits that her medical record demonstrates clear physical deterioration related to incontinence. She submits that on November 18, 2024 she attended at the hospital due to urinary incontinence for the past six months and stool incontinence for the past four months. As a result, an MRI was ordered, and it was noted that the Applicant has a known disc herniation and is awaiting surgery. I note that the records summarized in Dr. Gavett-Liu’s report indicate that the Applicant underwent a disc decompression surgery on or around February 12, 2025, but the surgical records are not before me and Dr. Gavett-Liu never commented on it.
74The Respondent submits that the Applicant has not experienced a significant or material change in her circumstances as it relates to her physical impairments. It submits that the Applicant’s disc-related symptoms were present prior to the initial hearing and that the Applicant’s incontinence symptoms did not begin until 2024, that there is nothing linking incontinence with the subject accident, and that there is no indication that it continued beyond the reports raised by the Applicant. Lastly, the Respondent submits that incontinence would not impact the catastrophic impairment determination, making it immaterial.
75I find that the period of reported incontinence is not a material change that would conclusively impeach the initial decision. This is because the Applicant had reported digestive issues prior to the accident and recently denied toileting issues to Dr. Gavett-Liu in the August 6, 2025 report. The Applicant’s report to Dr. Gavett-Liu comes at a time that post-dates her disc decompression surgery, when the Applicant reported greater functionality following surgery. This suggests that the reports of incontinence are temporary impairments that would not conclusively impeach the results of the initial decision. Additionally, the clinical notes regarding the Applicant’s incontinence compares a November 18, 2024 lumbar spine MRI to an MRI from May 2024, and found no acute evidence of cauda equina and stable mild degenerative changes without significant canal stenosis or compression of the cauda equina nerve roots. The comparison of the two MRIs, and the similarities between them, suggest that the Applicant has not experienced a material change in her physical impairments which would conclusively impeach the result of the initial decision.
76Having found that the Applicant has not experienced a material change in her circumstances, and that the new evidence does not conclusively impeach the result in the initial decision, I conclude that this is a circumstance in which the doctrine of res judicata should not be waived on the basis of fresh new evidence.
The justice of the case does not dictate that the application should proceed
77I find that the overall justice of the case does not dictate that the application should proceed.
78The Applicant submits that justice dictates that her current application must proceed because the prior decision on whether she sustained a catastrophic impairment pursuant to criterion 7 was not “determined on the basis of a prior merits-based assessment”. She further submits that justice requires that the initial decision on criterion 7 should not bind this application because both psychiatric experts in the initial decision were rejected for defects unrelated to the Applicants’ mental and behavioural condition. To the Applicant, the fact that Adjudicator Hines declined to assign a psychological impairment rating indicates that she never received a merit-based determination of whether she meets criterion 7.
79The Respondent submits that the decision by Adjudicator Hines was a merits-based decision, despite the Applicant’s evidence being rejected. The Respondent also submits that the Divisional Court upheld the initial decision as reasonable on Judicial Review.
80I find that the initial decision was based on the merits of the Applicant’s claims. Adjudicator Hines provided a fulsome analysis of the evidence regarding the Applicant’s health status in the initial decision, as discussed previously. Adjudicator Hines first highlighted the Applicant’s complicated health history, including a prior accident with similar injuries reported, as well as familial stressors. Adjudicator Hines then analysed the medical reports and made a conclusion based on the testimony and her preference for the reports – an approach approved in the Divisional Court decision.
81I agree with the Respondent and find that the overall justice of this case does not dictate that the application should proceed. The initial decision was fulsome and based on the merits of the case after evaluating the evidence. While I agree that Adjudicator Hines never assigned a WPI for the Applicant under criterion 7, it does not mean that the decision was not based on the merits. Rather, Adjudicator Hines chose not to assign a WPI based on the conclusion that the Applicant’s report was rejected because it was not an accurate reflection of the Applicant’s health status. Adjudicator Hines assessed the Applicant’s reports and found that the ratings provided were inflated and the methodology was not in accordance with the AMA Guides. The reasons provided by Adjudicator Hines in rejecting the Applicant’s evidence demonstrate that the decision was based on the merits.
82The fact that Adjudicator Hines declined to assign an impairment rating under criterion 7 does not mean that the initial decision was not merit-based. On this issue, I am persuaded by Adjudicator Hines’ discussion at paragraph 61 of the initial decision. Paragraph 61 discusses how the Applicant’s impairment ratings are inflated based on her overreporting on psychiatric tests, and the fact that the assessor failed to ensure that the Applicant understood the questions and answered them correctly. Similarly, at paragraph 63, Adjudicator Hines outlined how the Applicant’s testimony differed from the findings from the report, detracting from the overall persuasiveness of the report. These findings by Adjudicator Hines are based on the merits of the Applicant’s claim.
83Indeed, the Divisional Court decision found Adjudicator Hines’ approach to be reasonable. As the Supreme Court stated in C.U.P.E. at para. 52, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. The circumstances before me do not dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process. Accordingly, I find that the justice of the case does not dictate that res judicata should be waived to allow the application to proceed.
CONCLUSION AND ORDER
84The Applicant is not successful on the constitutional challenge. I find no breach of her s. 7 Charter rights.
85The Applicant is barred from proceeding with the application by the doctrine of res judicata.
86The application is not permitted to proceed to a hearing on the substantive issues.
Released: March 10, 2026
Brian Norris
Adjudicator