Larose v. Intact Insurance Company, 2026 CanLII 59492

Citation: Larose v. Intact Insurance Company, 2026 ONLAT 25-003994/AABS - R

RECONSIDERATION DECISION

Before: Nathan Prince, Adjudicator

Licence Appeal Tribunal File Number: 25-003994/AABS

Case Name: Tina Larose v. Intact Insurance Company

Written Submissions by:

For the Applicant: Mikolaj Grodzki, Counsel

For the Respondent: Sven Mascarenhas, Counsel Shivani Mehta, Counsel

OVERVIEW

1On March 4, 2026, the applicant requested reconsideration of the Tribunal’s decision dated February 23, 2026 (“decision”).

2Stemming from an accident on May 3, 2012, the applicant filed an initial application seeking a catastrophic impairment (“CAT”) determination under Criterion 8 pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The parties participated in a hearing between January 8 to 12, 2024 to determine this issue. The Tribunal found that the applicant was not catastrophically impaired and upheld the decision on reconsideration: see 2024 CanLII 41019 and 2024 CanLII 102108, respectively.

3The applicant commenced a second application based on a subsequent OCF-19. She again sought a catastrophic impairment determination under Criterion 8. In response, the respondent raised a preliminary issue asserting that the applicant was barred from proceeding to a hearing by the doctrine of res judicata. The parties participated in a one-day videoconference hearing on January 26, 2026 to determine whether res judicata applied to this application. The Tribunal found that res judicata applied, and it barred the applicant from proceeding to a hearing and dismissed the application.

4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

5The applicant relies on Rules 18.2(a) and 18.2(b) to support her request. The applicant is asking the Tribunal to vary the decision and find that res judicata does not apply and permit her to proceed to a hearing to determine whether she is catastrophically impaired under Criterion 8.

6The respondent asks the Tribunal to dismiss the request for reconsideration.

RESULT

7The applicant’s request for reconsideration is granted.

8Pursuant to Rule 18.4, the parties shall participate in a written rehearing before a different adjudicator. The only issue in dispute in the rehearing will be whether the applicant is barred from proceeding to a hearing by the doctrine of res judicata.

ANALYSIS

9The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(a) – Material breach of procedural fairness due to insufficient reasons

10I find that the Tribunal committed a material breach of procedural fairness by not addressing two of the applicant’s key arguments in its decision. As a result, the applicant has established grounds for reconsideration under Rule 18.2(a).

11The Supreme Court of Canada has repeatedly recognized the important role that reasons play in supporting the fairness and legitimacy of administrative decision-making. Most notably, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), the Supreme Court stated at paragraph 79 (citations removed):

Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power…

12Similarly, in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) (“Baker”) at paragraph 39, the Court ruled that reasons allow decisions to be questioned: “Reasons… are invaluable if a decision is to be appealed, questioned, or considered on judicial review”.

13Despite their importance to the fair administration of tribunal decision-making though, reasons are not to be judged on the standard of perfection: see, for example, Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paragraph 18. For instance, it is well-accepted that a tribunal is not expected to address every argument and piece of evidence presented by the parties: see Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670. Rather, reasons will meet the standard set out in Vavilov and Baker if a decision-maker shows they grappled with the key arguments and evidence presented by the parties.

14In this instance, it is not disputed that the preconditions for the application of res judicata have been met. Specifically, the Tribunal had previously determined the applicant was not CAT under Criterion 8; the decision was final; and the parties in the first CAT application are the same as the parties in this application.

15However, as res judicata is a discretionary remedy, the applicant argued at the hearing that the Tribunal should exercise its discretion and not apply the doctrine. While the applicant advanced several arguments at the hearing, I find the following two are material to this reconsideration request under Rule 18.2(a):

1. The insurer did not comply with its statutory obligations as articulated in Roy v. Primmum Insurance, 2020 ONSC 3886 (“Roy”); and,
2. Fairness dictates that the original result should not be binding in this matter.

16The applicant submits that the decision fails to properly consider these two arguments, and, therefore, the Tribunal breached her right to procedural fairness.

17The respondent submits that the Tribunal correctly identified the governing principles respecting res judicata, cited the correct caselaw, correctly found that the three preconditions were met, and reasonably concluded, based on the evidence at hand, that there was no basis to waive the doctrine.

18For the reasons that follow, I find the applicant has demonstrated that the decision does not provide adequate reasons regarding the applicability of Roy or whether fairness precludes the application of res judicata.

Roy and the respondent’s statutory obligations

19The applicant submits that Roy requires insurers, upon receipt of a new OCF-19, to engage with its statutory obligations under the Schedule, which include the obligation to reassess. The applicant submits that this did not occur and that the respondent relied on res judicata to avoid assessing the merits of the new OCF-19 as required by the Schedule. She suggests that this alleged failure to comply with its statutory requirements prevents the respondent from relying on the doctrine of res judicata.

20The respondent submits that it was entitled to rely upon the valid legal defence of res judicata and that the applicant has mischaracterized that reliance as procedural avoidance. The respondent also notes that Roy was decided under a previous version of the Schedule which required insurers to schedule insurer examinations upon receipt of an OCF-19, whereas the version of the Schedule applicable to this application contains no such requirement. Finally, the respondent submits that, even if it did not comply with its obligations under the Schedule (which it expressly denies), the alleged non-compliance does not act as a bar to res judicata.

21At paragraph [22] of the decision, the Tribunal explicitly notes the applicant’s reliance on Roy. Despite this acknowledgement, the decision does not address whether the principles in Roy are applicable to this proceeding, and, if they are, how they influence the application of res judicata.

22As previously noted, the Tribunal is not required to address every argument raised by the parties. However, given that it expressly referenced the applicant’s reliance on Roy, I find that this argument was understood by the Tribunal to be a central part of the applicant’s submissions. As a result, it was incumbent upon the Tribunal to undertake an analysis of Roy and its application to the issue at hand. By not addressing this key argument, I find the Tribunal materially breached the applicant’s right to procedural fairness.

23I acknowledge the respondent’s submissions that Roy was decided under a previous version of the Schedule that imposed different obligations on insurers, as well as its position that alleged non-compliance with these obligations does not preclude the application of res judicata. However, I find these submissions further highlight the need for the Tribunal to have conducted an analysis of Roy when it rendered its decision. It may very well be that an adjudicator will find there is no consequential relationship between an insurer’s alleged non-compliance with the Schedule and the application of res judicata, but the applicant has the right to see how the Tribunal will address this central part of her case.

Fairness and the application of res judicata

24As outlined above, the parties agree that the preconditions for the application of res judicata have been met. However, as the doctrine is discretionary, the Tribunal must consider whether to apply res judicata in this particular case. In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (“CUPE”), the Supreme Court identified three scenarios in which res judicata may be waived:

1. The first proceeding is tainted by fraud or dishonesty;
2. Fresh, new evidence is submitted that was previously unavailable that could conclusively impeach the original results; or
3. When fairness dictates that the original result should not be binding in the new context.

25The Supreme Court decisions in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (“Danyluk”) and CUPE identify several factors which may be applicable when addressing the discretionary nature of res judicata. The objective of this analysis is to ensure the orderly administration of justice, but not at the cost of real injustice in a particular case: see Danyluk at paragraph 67.

26The applicant submits that the decision does not meaningfully engage with the third waiver scenario (fairness) identified in CUPE. She suggests that the Tribunal should have considered whether the prior decision contained an error of law (as alleged by the applicant), the remedial consumer protection nature of the Schedule, and whether applying res judicata would undermine the Schedule’s legislative purpose.

27The respondent submits that the decision carefully assesses fairness under CUPE. In addition, the respondent submits that the Tribunal should not have considered whether the prior decision contained an error of law, as the Tribunal is not an appellate body reviewing the correctness of the prior adjudicator’s decision. The respondent suggests that, if the applicant believed the prior decision contained an error of law, the proper course was to pursue an appeal or judicial review, which she did not do. Furthermore, the respondent submits that accepting the applicant’s position would be untenable, as it would permit any party to avoid res judicata by bringing a subsequent application and arguing that the prior decision contained an error of law.

28At paragraph [17] of the decision, the Tribunal recognizes CUPE as the appropriate authority, and, at paragraph [21], the decision notes that the applicant’s submissions included reliance on the fairness waiver. However, I find the decision does not engage in a meaningful analysis of this waiver.

29This is particularly so with respect to the alleged error of law in the prior decision. Paragraph [22] of the decision notes that the applicant’s submissions were “heavily focused” on this factor; however, the decision does not address how an alleged error of law in the prior decision affects the discretionary nature of res judicata. I note that Danyluk explicitly contemplates the requirement to address alleged errors of law at paragraph 51:

Where arguments can be made that an administrative officer or tribunal initially possessed the jurisdiction to make a decision in a judicial manner but erred in the exercise of that jurisdiction, the resulting decision is nevertheless capable of forming the basis of an estoppel. Alleged errors in carrying out the mandate are matters to be considered by the court in the exercise of its discretion.

30In my view, the Tribunal was required to assess the factors for and against the exercise of discretion and determine whether fairness dictates that the prior decision should not be binding in this application. The applicant is entitled to appropriate consideration of the relevant discretionary factors, and in this instance, I find the decision does not provide adequate reasons outlining what factors were considered by the Tribunal and their impact on the application of res judicata. As a result, I find the Tribunal materially breached the applicant’s right to procedural fairness by not engaging in an analysis of the discretionary factors.

31Taken together, I find the applicant has established grounds for reconsideration, pursuant to Rule 18.2(a). In light of this conclusion, I further find I do not need to consider the applicant’s other grounds for reconsideration.

Rule 18.4 – Cancelling the Decision

32The applicant has established grounds for reconsideration under Rule 18.2, so I must now determine what the appropriate remedy is under Rule 18.4.

33In her reconsideration submissions, the applicant asks the Tribunal to set aside the finding that res judicata bars the application and permit her to proceed to a hearing on the substantive CAT issue. The respondent did not address this part of the applicant’s reconsideration submissions in its response.

34I find I am unable to make such a consequential ruling based on the records and reasons before me. I was not provided with a copy of the hearing transcript, and therefore, I am unable to ascertain the scope of the parties’ hearing submissions regarding the applicability of Roy and the fairness waiver under CUPE. As such, I find the only appropriate remedy under Rule 18.4 is to cancel the decision and order a rehearing of the issue.

35However, I also find that sending the dispute to a new videoconference or written hearing would not align with the Tribunal’s mandate to ensure efficient, proportional, and timely resolution of matters before it. Conducting a new hearing would unduly delay an already lengthy dispute and require the parties to provide the same evidence and submissions they relied on during the initial hearing. Instead, I am ordering that a different adjudicator consider the transcript and/or recording from the initial hearing, as well as the exhibits, to render a decision on whether the applicant is barred from proceeding to a hearing by the doctrine of res judicata. I find this remedy strikes an appropriate balance between facilitating efficient, proportional, and timely resolution, while also ensuring that this important issue is decided in a fair and open manner. I also find this remedy is squarely focused on addressing the breach established above, i.e., the inadequacy of the reasons.

CONCLUSION & ORDER

36The applicant’s request for reconsideration is granted.

37Pursuant to Rule 18.4, the decision is cancelled. A rehearing shall take place to address whether the applicant is barred from proceeding to a hearing by the doctrine of res judicata.

38The rehearing will be conducted by a new adjudicator reviewing the existing record, i.e., the recording and/or transcript of the hearing, as well as the exhibits from the initial hearing.

39The party who brought the court reporter to the initial hearing shall provide the other party and the Tribunal with a copy of the recording and/or transcript of the hearing within 30 days of the release of this reconsideration decision.

40I am not seized.

Nathan Prince

Adjudicator