Licence Appeal Tribunal

Citation: Misiti v. Aviva General Insurance Company, 2026 CanLII 45586 Licence Appeal Tribunal File Number: 24-013271/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: Felicia Misiti, Applicant and Aviva General Insurance Company, Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES: For the Applicant: Braden Adsett, Counsel For the Respondent: Andrea L. Bandow, Counsel

HEARD: By way of written submissions

OVERVIEW

1Felicia Misiti, the applicant, was involved in an automobile accident on September 23, 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 the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing pursuant to the doctrine of res judicata, because substantive issue number 1 below has already been decided, per the Tribunal decisions rendered on August 8, 2024 and November 8, 2024?

SUBSTANTIVE ISSUES

3The issues in dispute are:

i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit ("MIG")?

ii. Is the applicant entitled to $2,200.00 for psychological services, proposed by psychological Health Solutions in a treatment plan ("OCF-18") dated September 28, 2024?

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

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

RESULT

4The applicant is not barred from proceeding to a hearing.

5The applicant's injuries are predominantly minor as defined by the Schedule.

6As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plan is reasonable and necessary.

7The applicant is not entitled to interest or an award.

PROCEDURAL ISSUES

The applicant's evidence

8The respondent submits that the applicant should be precluded from relying on pages 142-146 of Tab 9 of her submissions because she failed to comply with the disclosure deadlines ordered by the Tribunal pursuant to Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (the "Rules"). As such, the respondent submits it has been prejudiced because it was deprived of procedural fairness and the opportunity to fully investigate and prepare for the new evidence.

9The applicant submits that the respondent provided the applicant with the Accident Benefits file on February 5, 2025, 36 days prior to the production deadline, which included the records it opposes. The applicant submits the respondent was in possession of all records prior to the production deadline set in the Case Conference Report and Order, dated January 31, 2025.

10I have reviewed the submissions and evidence of the parties and find that it is unclear when the disputed CNRs were provided to the respondent, if at all. While the applicant provides a copy of the letter correspondence from the respondent on February 5, 2025, the "excerpts" she provides of the Accident Benefits file are just copies of the pages the respondent takes issue with. As such, it is difficult for me to confirm whether this information was in the possession of the respondent, as the applicant claims. I will assign lesser weight, if any, to this evidence so that the respondent is not prejudiced by their alleged lack of ability to respond to this evidence.

ANALYSIS

Background

11The applicant had previously brought an application before the Tribunal, Tribunal file 22-006530/AABS (the "first hearing"). The Tribunal decision, dated August 8, 2024, held that the applicant's injuries are subject to the MIG limits, and in turn, the applicant was not entitled to the treatment plans in dispute.

12The applicant filed a request for reconsideration, and in reconsideration decision dated November 8, 2024, the Tribunal upheld the initial decision and denied the applicant's request.

13On October 28, 2024, the applicant filed the within application with the Tribunal.

PRELIMINARY ISSUE

Res Judicata

14For the reasons that follow, I find that the applicant is not barred from proceeding with her claim based on the doctrine of res judicata.

15The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. According to Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 ("Danyluk") at para. 25, there are three preconditions that must be established before the adjudicator can determine whether to exercise their discretion to apply res judicata. The factors are:

i. That the same question has been decided;

ii. That the decision was final; and

iii. That the parties were the same in both actions.

16The respondent submits that all of the prerequisites to establish res judicata are present. Both proceedings involve the same parties, the Tribunal has jurisdiction to adjudicate whether the MIG applies, and Adjudicator Charbonneau issued a decision on August 8, 2024, upheld by reconsideration on November 8, 2024, and as such the decision is final. The respondent submits that as both proceedings involve a dispute as to whether the applicant is subject to the MIG limits, the applicant is attempting to re-litigate the applicability of the MIG and entitlement to medical and rehabilitation benefits.

17The applicant does not agree that the preconditions of Danyluk listed above have been met. The applicant argues that the inquiry under Danyluk fails at the first precondition, as the present issue is substantively different from the previous one. The applicant argues that the MIG is not a benefit, rather a tier. The applicant submits that the submissions and decision of the first hearing focus on whether the applicant had pre-existing condition that would have hindered her recovery if she were to remain subject to the MIG limits. The applicant argues that this is not the case in the present dispute, wherein she asserts that her psychological (adjustment disorder) and physical impairments (chronic pain with functional impairments) are not captured by the MIG.

18The applicant argues that the question of whether the applicant sustained a non-minor injury pursuant to s. 3(1) of the Schedule was never addressed nor was the legal test for determining chronic pain applied because it was never advanced. The applicant relies on the Tribunal decision in Rattan v. Aviva Insurance Company, 2020 CanLII 103677 (ON LAT) ("Rattan"), wherein it was held that issue estoppel applied because there had been a prior finding that the applicant didn't have chronic pain. The applicant argues that is not the case in the present matter, as no such determination was made in the prior dispute. The applicant argues that the respondent's interpretation of issue estoppel would prevent the applicant from utilizing the multiple avenues available to her under the Schedule to have her injuries deemed non-minor.

19I find that the preconditions in Danyluk have not been met. The Tribunal's decision on August 8, 2024, held that the applicant did not suffer from a pre-existing condition that would have hindered her recovery if she was subject to the MIG pursuant to s. 18(2) of the Schedule. The reconsideration decision on November 8, 2024, upheld the Tribunal's decision. In the present case, the applicant is advancing a different path out of the MIG, that being that she suffers from chronic pain and psychological impairment. Even though the outcome sought by the applicant is the same in both cases, in my view, these are not the same issues. To escape the MIG under s. 18(1) due to psychological impairment or chronic pain requires different analyses than escaping the MIG via 18(2) of the Schedule for a pre-existing condition.

20I agree with the applicant's reliance on the Divisional Court decision in Tomec v Economical, 2019 ONCA 882, at para 45:

"Given the choice of a statutory interpretation that furthers the public policy objectives underlying the SABS and one that undermines it, the only reasonable decision is to side with the former."

21The substantive issue proposed before the Tribunal is worded as "Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?" In my view, the language used for the substantive issue is purposefully broad because there are multiple avenues in which an applicant could be found to be outside of the MIG. It is true that the purposive approach to res judicata is to prevent endless relitigation and that the expectation is that the parties put forth all of their submissions and evidence at first instance. However, even though the substantive issue is listed the same as in the first hearing, the question hinges on the definition of a "minor injury". In my view, it would be contrary to the public policy objectives of the Schedule to bar the applicant from seeking to escape the MIG through an alternate avenue thereafter, should one exist.

22As such, and keeping in mind the consumer protection mandate of the Schedule, I find that although the applicant in the first hearing argued she should be removed on the basis of a pre-existing condition, per s. 18(2) of the Schedule, that is not the same as litigating whether the applicant suffered a psychological impairment as a result of the accident or suffers chronic pain with functional limitation.

23I find that the applicant is not barred from proceeding to a hearing by the doctrine of res judicata.

SUBSTANTIVE ISSUES

Minor Injury Guideline

24The applicant's injuries are predominantly minor as defined by the Schedule.

25Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

26An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

27The applicant submits that as a result of the collision, she has sustained chronic neck pain, chronic headaches, and psychological impairment.

a) Chronic Pain

28I am not satisfied that the applicant suffers from accident related chronic pain with a functional impairment that warrants removal from the MIG.

29The applicant submits that as a result of the collision, she has sustained chronic neck pain and chronic headaches. The applicant submits that the evidence supports well-documented reduced range of motion and a failure to restore to pre-injury function after approximately 5 years of disability. The applicant further submits that she is incapable of pursuing her work, family, and recreation needs to the same level as prior to the collision, and it must therefore be concluded that she is unable to perform her housekeeping, home maintenance, and childcare tasks to the same degree as before.

30The applicant must demonstrate, on a balance of probabilities, that she suffers from accident-related chronic pain that causes functional impairment. In the present case, I find that the applicant has fallen short of meeting her burden.

31I accept that the applicant has documented chronic pain in the neck and chronic headaches, however, I am not persuaded that her chronic pain is accident related. The evidence before me supports that the applicant had made complaints of neck pain and headaches well before the subject accident. A clinical note and record ("CNR") of Dr. Campos Bustamante, dated January 28, 2022, relied on by the applicant for the within hearing indicates that the applicant has "chronic headaches and neck pain since Aug 2019." This pre-dates the accident by nearly a year. The s. 44 general practitioner report of Dr. Allan Kopyto, dated January 20, 2022, reports "she was seen on April 28, 2020 by a rheumatologist for neck pain and a positive rheumatoid factor. It was noted that her complaints at the time included neck pain, being "hardly" able to turn her neck when driving, and headaches." A CNR of Dr. Kim Legault, rheumatologist, dated January 12, 2021, states "pain that starts at the C1 and radiates down the C7, started 2019, difficulty moving her neck." I find that this evidence contradicts the applicant's position and is ultimately fatal in establishing that the applicant's chronic neck pain and headaches are accident related.

32Given these reasons, I find that the applicant has not established, on a balance of probabilities, that she has accident-related chronic pain with a functional impairment that warrants removal from the MIG.

b) Psychological Impairment

33I find that the applicant has not proven, on a balance of probabilities, that she has sustained psychological impairments as a result of the accident that warrants her removal from the MIG.

34The applicant submits that she developed psychological sequelae including sleep issues, changes in mood, anxiety with travel, avoidance and non-organic illness behaviour. The applicant relies largely on the s. 25 psychological assessment report of Dr. Sean Shahrokhnia, dated January 21, 2025, and the CNRs of her current family physician Dr. Jason Profetto.

35I am not persuaded by the CNRs of Dr. Profetto because it is unclear what medical records were reviewed in determining that the applicant suffers from psychological distress/mood disorder secondary to the accident. The CNRs of the applicant's former family physician, Dr. Campos-Bustamante relied on by the applicant are devoid of psychological complaint or diagnosis. I note that the CNRs of Dr. Profetto are dated February 15, 2024, to April 29, 2024, nearly four years post-accident. The applicant has not directed me to any other medical evidence of significance that speaks to psychological impairment during this time.

36Similarly, I am not persuaded by the s. 25 psychological assessment report of Dr. Shahrokhnia wherein the applicant was diagnosed with adjustment disorder. The report neither comments on nor indicates a review of the applicant's medical file. In this respect, Dr. Shahrokhnia's report is conducted largely on the basis of the applicant's self-reported complaints. More problematically, while Dr. Shahrokhnia diagnosis adjustment disorder, the applicant's psychological complaints are largely due to her pain symptomology. For example, the applicant stated, "I wake up due to pain" and that she feels anxious about the pain she experiences. The pain complaints reported to Dr. Shahrokhnia are neck pain and headaches. As I have found above, the applicant has a history of these pains that pre-date the accident. As such, I find that Dr. Shahrokhnia's conclusions based on her psychological profile are not related to pain complaints regarding the accident.

37I give significant weight to the s. 44 psychological assessment report of Dr. Joel Goldberg, dated August 5, 2025, because this assessor reviews Dr. Shahrokhnia's report, in addition to several of the applicant's medical records. I find the report of Dr. Goldberg to be clear and supportive that the applicant's symptom profile was within normal limits. Dr. Goldberg also reported that the applicant's depression profile showed no evidence of mood disorder, and her pain profile found no evidence of significant levels of depression. Dr. Goldberg ultimately opined that "formal psychopathology testing showed no evidence of impaired levels of emotional functioning." Dr. Goldberg ultimately found that "from a psychological perspective, based on the clinical interview and documentation and formal test findings, there is no evidence of accident-related psychological injuries."

38I find that the applicant has not proven, on a balance of probabilities, that she has sustained a psychological impairment that would warrant removal from the MIG.

39Having found that the applicant sustained a minor injury as a result of the accident, I find that it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary.

Interest

40As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

41The applicant sought an award under s. 10 of Reg. 664. Under s. 10, 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.

42As there are no benefits owing, the applicant is not entitled to an award.

ORDER

43I find that:

i. The applicant is not barred from proceeding to a hearing;

ii. The applicant's injuries remain predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

iii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plan is reasonable and necessary;

iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and

v. The respondent is not liable to pay an award.