Fridays with Rogers Partners

May 05, 2023

At our weekly meeting, Nasra Esak discussed the recent decision of the License Appeal Tribunal (LAT), Amalathasan v. Certas Home and Auto Insurance Company, 2023 CanLII 17707 (ON LAT).

In this decision, the Tribunal addressed the circumstances it can consider re-litigated issues and the application of the res judicata doctrine.

Background

The applicant was involved in a motor vehicle accident on March 22, 2016, and sought various accident benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (SABS). The respondent denied the applicant’s claim for weekly non-earner benefits and a psychological treatment plan and took the position that the applicant’s injuries fell within the Minor Injury Guidelines (MIG).

The applicant brought an application to the LAT to resolve the dispute. Following a hearing in 2020, the Tribunal upheld the respondent’s denials and determined that the applicant’s injuries were predominantly minor in nature as defined in the SABS.

Following the release of the 2020 decision, the applicant submitted an additional treatment plan for chiropractic treatment and a chronic pain assessment, which were subsequently denied by the respondent. The applicant then brought another LAT application to resolve the matter.

Res Judicata Doctrine

It was the respondent’s position that the issue regarding the applicant’s MIG determination had already been considered by the Tribunal during the 2020 hearing, therefore invoking the res judicata doctrine.

The Tribunal has defined this doctrine as one which “prevents a party from relitigating an issue that has already been decided”. As set out by the Supreme Court in Danyluk v. Ainsworth Technologies Inc., four conditions must be established before an adjudicator can consider whether to apply the doctrine:

  1. The parties must be the same in both actions;
  2. The prior claim must be within the jurisdiction of the Court/Tribunal;
  3. The prior adjudication must have been on the merits; and
  4. The prior decision must have been a final judgment. [1]

The Tribunal agreed with the respondent that the res judicata doctrine applied. In applying the Danyluk factors, the Tribunal determined that:

  1. The applicant and respondent in the 2020 Decision and the instant case were the same;
  2. The prior claim (namely, the 2020 Decision) was within the Tribunal’s jurisdiction;
  3. The 2020 Decision was on the merits; and
  4. The 2020 Decision was a final judgment.

Regarding this last point, the Tribunal noted that the applicant chose not to seek reconsideration, appeal, or judicial review of the 2020 Decision.

Waiver of Res Judicata

The Tribunal also considered the circumstances in which it may use its discretion to waive the doctrine and re-litigate prior decisions. Re-litigation may be necessary if it is to enhance the credibility and effectiveness of the adjudicative process. The Tribunal provided examples of these circumstances, such as where the first proceeding was tainted by fraud, or where fresh evidence is submitted which was previously unavailable and would impeach the original results.

The applicant submitted that a MIG determination is not always static as an applicant’s condition can worsen over time. The Tribunal acknowledged that such a situation could occur and that such a circumstance may warrant waiver of the doctrine.

However, the Tribunal held that this case did not merit waiver as there was no evidence of fraud or any fresh evidence which demonstrated any new accident-related impairments to warrant a MIG removal. Both the chiropractic treatment plan and chronic payment assessments denied by the respondent were found to be not “reasonable and necessary”, as per the SABS, given that the applicant’s injuries were minor in nature and the lack of fresh evidence produced by the applicant to demonstrate otherwise. 

Conclusion and Takeaways

The Tribunal dismissed the application and held that the issue regarding the applicant’s MIG designation has already been determined in a prior Tribunal hearing and the res judicata doctrine properly applied. As the applicant remained in the MIG, the Tribunal concluded that the treatment plans in dispute were not reasonable and necessary.

This recent LAT decision provides some guidance on the application of the doctrine of res judicata in the LAT context and the circumstances in which the Tribunal will exercise its discretion to waive the doctrine. This decision demonstrates that applicants are not completely barred from re-litigating prior decisions, provided that they can produce fresh evidence which would not have been available in the prior hearing or can show that the first proceeding was tainted by fraud.

[1] Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 18.