Citation: Scandlan v. Primmum Insurance Company, 2026 ONLAT 25-011558/AABS - PI

Licence Appeal Tribunal File Number: 25-011558/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:

Angela Scandlan

Applicant

and

Primmum Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant:

Nicolas Jeganathan, Counsel Gordon W. Harris, Counsel

For the Respondent:

Ashley Dunkley, Counsel Jennifer Kiss, Counsel

HEARD: In writing

OVERVIEW

1On March 24, 2014, Angela Scandlan’s husband and son were involved in an automobile accident. Angela Scandlan, the applicant, sought benefits from Primmum 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 (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2Pursuant to the Case Conference Report and Order (“CCRO”) dated December 19, 2025, the respondent raised the following preliminary issues:

i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?

ii. Is the applicant barred from proceeding to a hearing as she failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day as set out in section 32(1) of the Schedule?

iii. Is the applicant barred from proceeding to a hearing for a treatment plan dated January 14, 2024, in the amount of $3,791.05 for occupational therapy services and proposed by Options Therapy, by the doctrine of res judicata?

3In its submissions, the respondent withdrew the preliminary issue of whether the applicant was involved in an ‘accident” as defined by the Schedule. This Preliminary Issue Decision will therefore focus on the two remaining preliminary issues noted above.

RESULT

4The applicant provided a reasonable explanation for the delay in notifying the respondent pursuant to section 32(1). The application shall proceed to a hearing on the substantive issues as previously scheduled.

5The applicant has not satisfied her burden to show that the doctrine of waiver should apply.

6The applicant is barred from proceeding with the issue of the treatment plan in the amount of $3,791.06 for occupational therapy services by the doctrine of res judicata.

PROCEDURAL ISSUE – Motion to strike portions of the respondent’s reply submissions

7On March 6, 2026, the applicant filed a Notice of Motion for an order to strike any arguments, evidence or authorities introduced for the first time in the respondent’s reply submissions, including its reliance on a Social-Emotional Assessment Report, prepared by Barry Brown, registered social worker, dated February 17, 2023. More specifically, the applicant seeks to strike paragraphs 5(a), 5(b), 5(c), 6, 7, 8, 11, 12, 13 and 14 of the respondent’s reply submissions.

8The applicant submits that the Tribunal has consistently enforced that a party may not use reply submissions to introduce new arguments or evidence that should have been included in its initial submissions. She argues that the respondent introduced new arguments and evidence not relied on in its initial submissions and expands on theories regarding the principle of discoverability it did not introduce initially. Doing so, she submits, results in the splitting of the respondent’s case.

9The respondent submits that it did not introduce new arguments in its reply submissions. Rather, it directly replied to allegations made by the applicant in her responding submissions with respect to the principle of discoverability. The respondent relies on Voll v. Definity Insurance Company, 2026 CanLII 8168 (ON LAT) (“Voll”) where the Tribunal stated at paragraph 16: “[t]here is no obligation for the respondent to include in its initial submissions responses to arguments the applicant may or may not make in her responding submissions.”

10The applicant rejects the reliance on Voll and argues Voll is non-binding, is inconsistent with binding authorities, and should not be followed. The applicant also raises that Voll is currently under reconsideration by the Tribunal. She relies on Espiritu v. Aviva, 2021 CanLII 19409 (ON LAT), (“Espiritu”) Allcock, Laight & Westwood Ltd. v. Patten, 1966 CanLII 282 (ON CA), 1966 CarswellOnt 151¹ (“Allcock”), Jiang v.The Co-Operators General Insurance Company, 2024 ONSC 1225 (“Jiang”) and [M.C.] v. Certas Direct Insurance Company, 2025 CanLII 81434 (ON LAT) (“M.C.”).

11I acknowledge that at the time the parties’ submissions were due on this preliminary issue, a request for reconsideration in Voll had been filed with the Tribunal. Since then, the applicant’s request for reconsideration has been dismissed (see: Voll v. Definity Insurance Company, 2026 CanLII 45608 (ON LAT).

12I am not persuaded by the authorities relied on by the applicant. In Espiritu, the applicant relies on paragraphs 4 to 7 of the decision and states that the Tribunal confirmed that reply submissions cannot be used to advance new arguments or evidence except where necessary to address unforeseen matters raised by an opposing party. While I do not disagree with the legal principle, the paragraphs the applicant points me to are arguments put forward by the parties in the matter and are not part of the Tribunal’s finding. Plus, in Espiritu, the respondent filed a motion in the context of a written hearing where it sought an order to strike the applicant’s reply submissions “because the reply contains new documentary evidence and arguments.” The Tribunal did not agree with the respondent and denied its motion. In addition to not being bound by this decision, it is unclear to me how this decision supports the applicant’s argument.

13The applicant also relies on Jiang and states that the Court held a party cannot introduce new arguments at reconsideration or appeal that were available at the original hearing, absent exceptional circumstances. I find that Jiang is distinguishable as we are not dealing with reconsideration of a decision.

14Regarding M.C., the applicant submits that the “Court” reaffirmed that parties cannot introduce new arguments or new caselaw that they could have, but did not, raise before the Tribunal. The applicant points to paragraphs 27-29 of this decision. M.C. is a decision of this Tribunal and not of the Divisional Court, does not contain paragraphs 27-29 and does not discuss the issue of reply submissions. I note that although the applicant cites M.C. in her submissions, she instead included the decision of Martin v. Certas Home and Insurance Co., 2025 ONSC 665 as part of her authorities. I have also reviewed this decision and neither the paragraphs pointed to, nor the decision as a whole, address the issue of reply submissions.

15The applicant also relies on Allcock where the Court of Appeal stated “[i]t is well settled that where there is a single issue only to be tried, the party beginning must exhaust his evidence in the first instance and may not split his case (…)”. I accept the Court’s stated principle, and in my view, the respondent did just that.

16As stated in Voll, each party is expected to make their own case; they must put forward the arguments, evidence and authorities on which they rely to make their case (at para. 15). Here, one of the preliminary issues raised by the respondent is whether the applicant provided notice to the respondent pursuant to section 32(1) of the Schedule. The respondent’s initial submissions focused on the applicant’s failure to do so. The respondent does not rely on the principle of discoverability to prove its case. It was only in the applicant’s responding submissions, and as part of her argument pursuant to section 34 of the Schedule that she had a reasonable explanation for the delay, that the applicant argues the principle of discoverability should apply. The party putting forward the concept of discoverability, here the applicant, has the onus to show that the principle applies.

17The applicant submits that because of correspondence exchanged prior to the preliminary issue submissions outlining her position on discoverability, the respondent had an obligation to fully address it in its initial submissions. I disagree. I do not find that the respondent had the onus to make a case and disprove the principle of discoverability in its initial submissions without the applicant first making her case. I therefore find there is no case-splitting.

18In my view, the paragraphs pointed to by the applicant are responsive to the applicant’s reliance on the principle of discoverability she argues in her responding submissions. I find there is nothing improper with the respondent’s reply submissions.

19The applicant’s motion is denied.

PROCEDURAL ISSUE – Lateness and length of applicant’s submissions

20In the respondent’s responding submissions on the motion, it states that contrary to the imposed timelines for submissions, the applicant’s sur-reply submissions on the preliminary issues were late filed. The respondent submits the applicant filed her submissions on February 9, 2026 (a Monday) rather than on Friday, February 6, 2026.

21The CCRO set the timelines of the parties’ submissions on the preliminary issues as follows:

i. Respondent’s submissions – 35 calendar days after the case conference, being January 23, 2026;

ii. Applicant’s submissions – 42 calendar days after the case conference, being January 30, 2026;

iii. Respondent’s reply submissions – 3 business days after responsive submissions being February 4, 2026; and

iv. Applicant’s sur-reply submissions – 3 business days after responsive submissions.

22The respondent served and filed its reply submissions on February 3, 2026, one day before the deadline of February 4, 2026. I agree with the respondent that pursuant to the CCRO, the applicant would have therefore been required to file her submissions by February 6, 2026. Here, however, the applicant filed her submissions on the next business day (February 9, 2026).

23I acknowledge that parties should adhere to the timelines and lengths of submissions as they are ordered by the Tribunal. Here, however, had the respondent filed on the expected date (February 4, 2026) rather than a day sooner, the applicant’s submissions would have been filed on time. The respondent has not explained how the 24-hour delay has prejudiced its position and I note that the submissions in the applicant’s sur-reply mirror the submissions the applicant puts forward in her motion. Because there is no evidence of prejudice caused to the respondent, the delay of 24-hours is minimal, and because similar submissions are put forward through the means of the applicant’s motion, I do not find it necessary to take any measures to address the one-day delay. In any event, the respondent did not state the relief it seeks in light of the delay.

24In addition to the issue raised above, in an email to the Tribunal dated March 19, 2026, the respondent notes that the length of the applicant’s reply submissions on the motion were in excess of two pages. The respondent “takes the position” that any submissions over the page limit should not be considered. Pursuant to the Notice of Motion Hearing dated March 6, 2026, the applicant was to file any reply submissions by March 18, 2026, limited to three double-spaces pages.

25The Tribunal does not consider requests for relief submitted by email. Any request must be submitted through the filing of a Notice of Motion to allow the opposing party an opportunity to respond (see: Rule 15 of the Licence Appeal Tribunal Rules, 2023).

26Since the respondent did not file a Notice of Motion, its request to strike the two additional pages of the applicant’s reply submissions on the motion will not be considered.

BACKGROUND

27On March 24, 2014, the applicant’s husband and son were injured in an accident. The applicant was not present at the accident and did not sustain any immediate injuries.

28On March 9, 2021, the applicant submitted a Disability Certificate (OCF-3) to the respondent. There is no dispute that this was the first notification provided by the applicant in relation to her intent to pursue a claim for accident benefits.

29On March 10, 2021, the respondent requested that the applicant complete an application for accident benefits (OCF-1). The applicant’s OCF-1 was submitted to the respondent on April 6, 2021, over seven years after the date of the accident.

30Pursuant to her OCF-1, the applicant states that she has been impacted by her husband’s and her son’s injuries by being forced to take on more of a caregiving role and preventing her from doing other activities and/or work. The applicant submits that, as a result of her husband’s and her son’s injuries, she has, over time, developed psychological and mental injury impairments, emotional trauma, and a progressive realization of the long-term consequences of the accident.

31Prior to the current Tribunal application, the applicant filed a previous application in relation to this accident in 2023 under Tribunal File Number 23-002717/AABS. The CCRO dated October 26, 2023 in the matter identified the issues in dispute being income replacement benefits (“IRBs”), three treatment plans (OCF-18s), an award and interest. The CCRO also identifies a preliminary issue: whether the applicant was barred from proceeding with her claim for IRBs as she failed to dispute her denial within the two-year limitation period. A preliminary issue decision was released on December 18, 2023, which found that the applicant was statute-barred from proceeding with her claim for IRBs (see: Scandlan v. Primmum Insurance Company, 2023 CanLII 122947 (ON LAT)).

32The remaining issues in dispute proceeded to a substantive hearing and a Decision was released on June 2, 2025 (see: Scandlan v. Primmum Insurance Company, 2025 CanLII 52377 (ON LAT)). Relevant to this Preliminary Issue Decision, one of the issues in dispute was whether the applicant was entitled to $3,791.06 for occupational therapy services, proposed by Joanne Nunn in a treatment plan (OCF-18) submitted on October 25, 2022. The Tribunal found that the applicant had not proven on a balance of probabilities that the treatment plan was reasonable and necessary.

ANALYSIS

The applicant has a reasonable explanation for her delay in notifying the respondent

33Section 32(1) of the Schedule provides that a person who intends to apply for accident benefits shall notify the insurer of their intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.

34Once an insurer receives notice of an applicant’s intention to apply for statutory accident benefits, the insurer must provide the applicant with the appropriate OCF-1 forms, a written explanation of the benefits available, information to assist the person in applying for the benefits and information on the election relating to the specified benefits, if applicable (section 32(2)). Pursuant to section 32(5) of the Schedule, the applicant must then submit a completed and signed application for benefits to the respondent within 30 days after receiving the forms.

35Section 34 of the Schedule states that “a person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” The onus is on the applicant to establish a reasonable explanation for the delay. The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 (“Horvath”) and was reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT) (“K.H.”). The guiding principles are summarized as follows:

a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed;

b. The onus is on the insured person to establish a “reasonable explanation”;

c. Ignorance of the law alone is not a “reasonable explanation”;

d. The test for “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard;

e. The lack of prejudice to the insurer does not make an explanation automatically reasonable; and

f. An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.

36The parties concede the first notification to the respondent was on March 9, 2021, with the submission of her OCF-3, which was six years, eleven months, and fourteen days from the date of the accident.

37The respondent submits that the applicant failed to provide timely notice of her intention to claim accident benefits and has not provided a reasonable explanation for the delay. The respondent argues that if the applicant claims she had to provide more caregiving duties to her husband and son, it contends the realization of her impairments would have arisen earlier than when she submitted her OCF-3. It points to the fact that her husband and son were represented by counsel within a short time after the accident. The respondent adds that this is not a matter of discoverability, rather, this is an attempt to make a claim for benefits nearly seven years after an accident without having followed the proper legislative guidelines.

38The applicant submits that this preliminary issue is being raised long after the respondent accepted the applicant’s claim, adjusted it, paid significant benefits, and previously adjudicated the matter before the Tribunal in her previous application in 2023. She submits that the respondent did not raise the issue of late notification at that time, did not dispute the applicant’s insured status, and did not advance any other threshold entitlement defence. She argues that “the law does not permit an insurer to retrospectively revive threshold objections after the (second) dispute resolution process is well underway” but did not provide any authority in support of her assertion.

39Regarding the applicant’s argument that the respondent did not raise “any other threshold entitlement defence” at the time of the previous application in 2023, for clarification and as I noted above, a preliminary issue decision found that the applicant was barred from pursuing her claim for IRBs due to her failure to dispute the denial within the two-year limitation period. I accept the applicant’s point, however, that the issue of late notification was not raised by the respondent in 2023.

40The explanation put forward by the applicant for her delay is that her psychological impairments were not “discovered” until she submitted her OCF-3 on March 9, 2021. I acknowledge that the applicant also argues that the respondent should be estopped from raising the issue of notification at this point in the process. I find however that the applicant’s reliance on the doctrines of waiver and issue estoppel do not constitute an “explanation” in the context of section 32(1) and therefore will be dealt with separately.

41The applicant submits that this is not a case where she failed to comply with section 32(1) due to ignorance of the law or because she misunderstood legal timelines. She submits that notification was delayed because she did not yet understand herself to be injured within the meaning of the Schedule. She argues that her psychological injuries developed over time because of long-term caregiving demands, emotional trauma, and the cumulative effects of living with the injuries suffered by her husband and son. The applicant relies on Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”), more precisely paragraph 42, and argues that the jurisprudence distinguishes between ignorance of statutory requirements and delayed discoverability of injury.

42I am perplexed by the applicant’s reference to paragraph 42 of Tomec. Paragraph 42 does not address “ignorance of statutory requirements” nor does it discuss “delayed discoverability of injury”. Rather, the paragraph discusses the remedial purposes of the Schedule, and the applicant makes no further submissions in respect of Tomec in relation to her reliance on the doctrine of discoverability. That being said, I acknowledge that Tomec is a matter where the Court discusses “discoverability” but in the context of the two-year limitation period in appealing an insurer’s denial of benefits. There is no issue here about the applicant appealing a denial within the two-year limitation period.

43Essentially, the applicant submits that she did not notify the respondent of her intent to claim accident benefits before she submitted her OCF-3 on March 9, 2021, because her psychological impairments were not “discovered” until that time and she was not eligible for benefits until the psychological impairments developed. She also argues that she could not have notified the respondent earlier because she was consumed with the immediate and ongoing needs of her injured family members and did not appreciate that her own psychological deterioration constituted a compensable injury.

44She submits that, objectively, a reasonable person in the applicant’s circumstances – not present at the accident, focused on caregiving, and experiencing a gradual worsening of her psychological distress – would not be expected to assert a claim for accident benefits before recognizing the existence and significance of their own impairments.

45The respondent submits Tomec emphasizes that when faced with an interpretation that furthers the public policy of the Schedule or undermines it, the only reasonable decision is to side with the former. It argues that in this matter, the only reasonable conclusion would be to find that the reference to “shall notify within seven days” at section 32(1) must be strictly adhered to. It argues that the applicant had ample opportunity to file an application well before March 9, 2021, but neglected to commence her claim within the proper time period. The respondent submits that the length of the delay is excessive and cannot reasonably be justified.

46In response, the applicant points to section 32(1) where it states that notification of an intention to claim accident benefits must be provided no later than the seventh day after the accident or “as soon as practicable after that day.” She therefore argues that she notified the respondent “as soon as practicable” once her entitlement to accident benefits arose.

47The respondent disputes the applicant’s reliance on delayed discoverability and submits that the alleged discovery of her psychological injuries appears to be intertwined with other underlying factors. The respondent points to the applicant’s last day worked (June 13, 2018), her husband’s deemed CAT designation (February 21, 2019), and the couple’s adoption of three children in 2016, 2017 and 2018, with one of these children living with various disabilities requiring more care from the applicant. The respondent argues that if the accident truly caused her psychological injuries, these injuries would have reasonably manifested well before 2021 and not seven years post-accident. It submits that her injuries were discoverable at the very latest in February 2019 when her husband was deemed CAT. There is no reasonable explanation for the significant delay in making her claim.

48Whether the applicant’s alleged psychological injuries were due to the aftermath of the accident or to other factors is a question of causation. I am tasked with determining whether the applicant has a reasonable explanation for the delay in notifying the respondent pursuant to section 32(1). If the matter proceeds to a substantive hearing, the respondent can raise the issue of causation at that time and argue it on its merits with all relevant evidence before the Tribunal. For the purposes of determining whether proper notification was provided, causation is not an element I will be considering.

49Both parties rely on Tomec. The Court of Appeal in Tomec states that “statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is absurd if it “leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.” (at para. 46)

50The statutory notification at section 32(1) requires an insured to notify the insurer within seven days of the incident “or as soon as practicable after that day”. In my view, to impose a seven-day notification requirement on an individual who was not subject to an accident but became an “insured person” by the gradual development of psychological impairments pursuant to section 3(1)(a)(ii) of the Schedule, would result in the insured claiming benefits at a time she was ineligible to make such a claim. In my view, this qualifies as an “absurd result” as cautioned in Tomec.

51Here, the applicant was not involved directly in the accident and did not suffer physical injuries. She became the caregiver for her husband and child who sustained significant injuries in the accident. Unlike physical injuries that are objectively discovered either immediately or within a short time frame after the accident, psychological injuries develop gradually and may only be discovered after a longer period of time. The applicant submits that her psychological impairments were only discovered at the time her OCF-3 was submitted.

52One would assume that an insured would want to claim accident benefits as soon as they are eligible to receive them. Neither party has pointed me to medical evidence that conclusively pinpoints the exact date the applicant’s psychological impairments developed and I do not believe it would be reasonable to expect an exact date. What I find important is when the applicant became aware, or “discovered”, she had developed psychological impairments. She points to her submission of the OCF-3. The respondent argues that the applicant should have discovered her impairments by February 2019 at the latest. Regardless of whether she should have or could have discovered her impairments earlier, the respondent has not pointed me to any medical documentation that shows a diagnosis or other information that would support the applicant “discovered” her impairments earlier.

53The applicant was the main caregiver for her husband and son who were significantly injured in the accident. Even the Social-Emotional Assessment prepared by Barry Brown dated February 17, 2023, relied on by the respondent, supports that the needs of the applicant’s husband and son increased over time. It states that after almost nine years after the accident, the applicant’s husband’s and son’s “injuries and impairments continue to diminish and limit their quality of life substantially. Further, the accident’s sequelae have profoundly impacted virtually (sic) aspect of [the applicant’s] life, and dramatically altered her roles as an individual, wife and parent.”

54For the purpose of this preliminary issue, there is no information to conclusively establish when the impairments were discovered. I have also not been shown any information that the impairments would have been discovered prior to the applicant’s submission of her OCF-3. The question before me is whether the applicant has provided a reasonable explanation for the delay in notifying the respondent. For the reasons noted above, I find she has. I find the applicant notified the respondent of her impairments as soon as she became aware of them, and therefore, when she became eligible for accident benefits pursuant to section 3(1)(a)(ii) of the Schedule.

55An assessment of reasonableness includes a balancing of prejudice to the respondent, hardship to the applicant, and whether it is equitable to relieve against the consequences of the failure to comply with the time limits at section 32.

56The respondent submits that the applicant’s delay in notifying it caused prejudice in its ability to access the claim at a time when the evidence was fresh and circumstances were discoverable. It adds that if the Tribunal was to allow such a lengthy delay for someone who was not involved in the accident, this would open the floodgates for any family member to make such a claim, which is not the intent of the legislature.

57As I found above, the applicant notified the respondent as soon as practicable (i.e., as soon as she became aware of the impairments) and I am not persuaded by the respondent’s arguments that allowing the applicant to proceed to a hearing would “open the floodgates”. The applicant will still have the substantive burden of proving her entitlement to the benefits she claims at the substantive hearing. I also find it relevant that the respondent has been assessing the claim since April 2021 and only now claims prejudice pursuant to section 32(1) in this second application to the Tribunal.

58I find the prejudice to the respondent is outweighed by the severe hardship that could result to the applicant should the application be barred without a determination on its merits.

59For these reasons, I find the applicant has provided a reasonable explanation for her delay in notifying the respondent and may proceed with her application.

The applicant has not satisfied her onus to show that the doctrine of waiver should apply

60In addition to the doctrine of discoverability, the applicant also submits that the respondent should be estopped from raising the issue of late notification. She explains that the respondent accepted her claim, adjusted it, paid her benefits, and participated in prior Tribunal proceedings without ever raising the issue of notification.

61The applicant appears to intertwine the doctrines of waiver and issue estoppel by submitting the respondent should be “estopped” from relying on section 32(1), and then setting out the test for waiver, which she submits requires (a) full knowledge of the right being waived, and (b) a clear an unequivocal intention to abandon that right which may be inferred from conduct. She further submits that unlike estoppel, waiver does not require proof that the opposing party relied on the waiver to their detriment. She relies on Aviva Insurance Canada v. Harland-Bettany, 2023 ONSC 3395 (“Harland-Bettany”).

62I do not find the applicant’s reliance on Harland-Bettany helpful. Harland-Bettany is a statutory appeal of a decision by the Tribunal where the insurer paid benefits for several years following an accident and only subsequently, in an application before the Tribunal, raised the preliminary issue of whether the insured was involved in an “accident” as defined by the Schedule. The Divisional Court found that it did not have jurisdiction to hear the appeal of the preliminary issue decision because it was an interlocutory decision.

63I acknowledge that the Divisional Court decision references the preliminary issue decision where the Tribunal found the insurer did not raise the preliminary issue in a timely fashion and also found the incident was indeed an “accident”. However, at no time does the Divisional Court decision set out the legal test for waiver, discuss how the doctrine of waiver applies to the facts in that matter, or even mentions the word “waiver” in the decision.

64The applicant also argues that an intention to waive need not be express; it may be demonstrated where a party, with knowledge of its rights, acts in a manner inconsistent with any intention to rely on them. Again, this is not a finding attributable to Harland-Bettany and the applicant has not cited any other authority. With no legal authority setting out the legal test for waiver, I find that the applicant has not satisfied her onus of proving that waiver should apply to the circumstances.

Res judicata applies to the OCF-18 in the amount of $3,791.05 for occupational therapy services

65The 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.

66According to the Supreme Court of Canada in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63 (“CUPE”), at paras. 52 and 53, res judicata can be waived in the following situations:

i. The first proceeding is tainted by fraud or dishonesty;

ii. Fresh, new evidence is submitted that was previously unavailable that would conclusively impeach the original results; or

iii. When fairness dictates that the original result should not be binding in the new context.

67The applicant filed a previous application with the Tribunal in 2023. One of the issues in dispute in the previous application was whether the applicant was entitled to a treatment plan in the amount of $3,791.06 for occupational therapy services, prepared by Joanne Nunn and submitted on October 25, 2022 (“the 2022 treatment plan”). In a Decision dated June 2, 2025, the Tribunal found the applicant had not satisfied her onus to prove that the treatment plan was reasonable and necessary.

68The current application includes the issue of whether the applicant is entitled to $3,791.06 for occupational therapy services, proposed by Joanne Nunn in a treatment plan dated February 14, 2024 (“the 2024 treatment plan”).

69The respondent argues that the 2022 treatment plan, which the Tribunal found was not reasonable and necessary, is the exact same as the 2024 treatment plan. The goals, objectives and treatment modalities are identical. It submits that the parties are the same, the claim was within the jurisdiction of the Tribunal, the adjudication of the matter was determined based on its merits, and it was a final decision. It adds that continuously submitting the exact same treatment plan with the same goals, objectives, and modalities is not appropriate and must be deterred. It would be inappropriate for the Tribunal to make a determination on an issue the Tribunal has already heard and decided.

70The applicant submits that the 2024 treatment plan is materially different from the 2022 treatment plan and therefore the same question was not decided in the previous application. She also submits that the earlier determination was not a final decision. She submits that entitlement under the Schedule is dynamic and must reflect the insured’s evolving health. She argues that a denial at one point cannot permanently foreclose future entitlement without undermining the remedial purpose of the Schedule and guidance in Tomec against rigid, consumer-hostile interpretation. In the accident-benefits context, treatment plans are inherently time-sensitive and forward-looking, reflecting the insured person’s condition, functional status, and treatment needs at the time the plan is prepared. Where the clinical and factual foundation has changed, the issue before the Tribunal is not the same issue previously adjudicated. She relies on Khan v. Aviva Insurance Company of Canada, 2023 CanLII 7300 (ON LAT) (“Khan”) and Aviva General Insurance Company v. Catic, 2022 ONSC 6000 (“Catic”)

71First, I find that both Khan and Catic are unhelpful as neither decision deals with a claim of res judicata. Both matters are distinguishable as they deal with the ten-business day requirement set out in section 38(8) of the Schedule. In addition, the paragraphs the applicant points to in each of these decisions do not help support the position the applicant articulates.

72The parties do not dispute that they are the same parties as those in the Tribunal’s initial decision of June 2, 2025. I will therefore focus my analysis on whether the question is the same and whether the decision was final.

The question is the same

73The applicant submits that the occupational therapy treatment plan in 2022 and the treatment plan submitted in 2024 differ materially in content, structure and clinical context. She points to differences in narration at parts 8(b), 9(d) and more specifically at part 12 which she argues provides a detailed explanation of each service line, the purpose of the services, and includes a progress report. The applicant argues that this shows both clinical progression and increased functional complexity. She argues that the fact that the 2024 treatment plan contains different explanations, greater detail, or an updated depiction of concurrent treatment does not mean that the applicant is attempting to relitigate a previously decided issue. It means that the applicant’s condition, treatment environment, and clinical understanding have evolved, as have the needs of the applicant.

74Part 12 of the treatment plans sets out the proposed goods or services requiring approval. Contrary to the applicant’s assertion, I find they are the same in both the 2022 and the 2024 treatment plans. They identify:

i. Documentation, support activity for claim form: 1 session of 1 hour;

ii. Preparation, service: 6 sessions of a half hour;

iii. Provider travel time/treatment: 6 sessions of 1.5 hours;

iv. Training, cognition and learning (skills): 6 sessions of 2 hours; and

v. Documentation, support activity: 1 session of 4 hours.

75The only difference in Part 12 of the 2022 and 2024 treatment plans is in respect to “Planning, service”. The 2022 treatment plan lists one session of eight hours (totalling 8 hours) whereas the 2024 treatment plan lists four sessions of 2 hours (totalling 8 hours). The total amount claimed for both treatment plans is $3,791.06.

76I find the question determined in the June 2025 decision regarding the 2022 treatment plan is the same as would be determined for the 2024 treatment plan. Both treatment plans are for occupational therapy services, they identify the same goal (i.e., “occupational therapy intervention”), the proposed goods and services at part 12 are the same, the total amount of the treatment plans are the same, and both treatment plans were prepared by the same provider. The fact that the narration provided may be different in both plans does not change the fundamental elements of these plans.

77In Danyluk (at para. 54), once a material fact is found to exist (or not to exist), the same issue cannot be relitigated in subsequent proceedings between the same parties. Here, the Tribunal found in its June 2, 2025 decision that the treatment plan was not reasonable and necessary.

78I find that the first precondition – whether the question is the same – has been established.

The June 2, 2025 decision was final

79The applicant submits that the decision was not final but she takes this position because she argues entitlement under the Schedule must reflect the insured’s evolving health and current needs.

80I find the June 2, 2025 decision was final. The applicant had the opportunity to request reconsideration of the June 2025 decision but did not do so. She also did not avail herself of the statutory right to appeal or apply for judicial review that were available to her.

Res judicata is not waived

81The Supreme Court in CUPE provides discretion to waive res judicata where an adjudicator finds that the first proceeding is tainted by fraud or dishonesty; where fresh, new evidence is submitted that was previously unavailable and that would conclusively impeach the original results; and when fairness dictates that the original result should not be binding in the new context. The Supreme Court stated in Danyluk that this consists of taking into account the entirety of the circumstances and considering whether the application of issue estoppel in the particular case would work an injustice (at para. 80).

82The applicant does not claim that the first proceeding was tainted by fraud or dishonesty. She does however claim that the “clinical and factual foundation” of the treatment plans have changed and the applicant’s health has evolved, but does not point me to any new evidence, medical or otherwise, that was previously unavailable at the first hearing of the 2022 treatment plan.

83Regarding the fairness element of CUPE, she argues that a denial at one point in time cannot permanently restrict an applicant from filing a future treatment plan without undermining the remedial purpose of the Schedule and guidance in Tomec against rigid, consumer-hostile interpretation.

84I am not persuaded that it would be unfair to apply res judicata in this context. The interpretation referred to in Tomec is in relation to statutory provisions. The Supreme Court has discussed and set out the legal framework for a determination of res judicata (in Danyluk) and provided the factors to consider for waiving res judicata (in CUPE).

85I find that the applicant is attempting to relitigate her claim for occupational therapy services which is precisely what the doctrine of res judicata is aimed at preventing. Parties are required to put their best foot forward to establish truth of their allegations when first called upon to do so. Once an issue is decided, it should not be relitigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided (see: Danyluk, para. 18).

86For these reasons, I decline to exercise my discretion to waive res judicata.

ORDER

87For all the above reasons, I find:

i. The applicant provided a reasonable explanation for the delay in notifying the respondent pursuant to section 32(1). The application shall proceed to a hearing on the substantive issues as previously scheduled.

ii. The applicant has not satisfied her burden to show that the doctrine of waiver should apply.

iii. The applicant is barred from proceeding with the issue of the treatment plan in the amount of $3,791.06 for occupational therapy services by the doctrine of res judicata.

Footnotes

1. 1for clarification, I note that the proper citation is Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd. Patten and L.A. Corney Commercial Deliveries Ltd. v. Bernard and Dynamic Displays Ltd., [1966] CarswellOnt 151, 1966 CanLII 282 (ON CA)