The recent Licence Appeal Tribunal decision Alazab v. Aviva General Insurance Company, 2022 ONLAT 19-011494/AABS, provides a thorough analysis of the doctrine of res judicata at the LAT.
Before examining the facts of this case, it is essential to consider the background leading to this decision. The Applicant Fatima Alazab was involved in an automobile accident on December 8, 2016, and sought benefits pursuant to the SABS- effective September 1, 2010. The Applicant first brought an application before the LAT in 2020 (F.A. vs. Aviva General Insurance, 2020 ONLAT 18-011952/AABS) in relation to denied treatment plans for catastrophic impairment assessments as well as three other denied treatment plans. The Applicant alleged that she sustained a traumatic brain injury, back injury and psychological injuries as a result of the accident; however, led no evidence of this at the hearing. Aviva took the position that these injuries were not caused by the accident predominantly because the accident was quite minor, she did not report her complaints to a doctor for over one year, and she had a significant pre-existing psychological history. The insurer relied on the family doctor’s clinical notes and section 44 reports. Based on the reported decision, it is unclear what evidence the Applicant was relying on to prove her injuries were caused by or exacerbated by the accident. Adjudicator Johal concluded that the Applicant had not discharged her burden of proof to establish causation in relation to any alleged injuries or impairments and dismissed her Application in its entirety.
It appears that following this decision the Applicant obtained CAT reports and filed for reconsideration, but for some reason, never pursued it; therefore, the above decision was never appealed.
The present case, Alazab v. Aviva General Insurance Company, 2022 ONLAT 19-011494/AABS, relates to the Applicant’s second application to the LAT. This time she applied based on denied non-earner benefits and treatment plans. Before the hearing, Aviva asked Adjudicator Norris to determine the preliminary issue of whether the Applicant was precluded from proceeding with her application due to res judicata because the Tribunal had previously determined that the subject accident did not cause any of the Applicant’s impairments. The insurer’s position was that it would be impossible for the Applicant to be successful in the adjudication of the substantive issues in the current Application without making a determination to the contrary of Adjudicator Johal’s decision in the first Application because the tests for the benefits claimed all require the Applicant to have sustained an impairment as a result of the accident. The Applicant submitted that fairness would dictate that she be entitled to another hearing because new evidence was available in the form of multidisciplinary catastrophic impairment assessment reports which found that she sustained impairments as a result of the accident.
Adjudicator Norris determined that the four pre-conditions of res judicata were met – the parties were the same in both actions, the prior claim was within the jurisdiction of the Tribunal, the prior adjudication was decided on its merits (based on the facts and medical evidence presented at the time), and the prior decision was a final judgement (because the reconsideration was not pursued).
It was noted that res judicata could be waived in the following scenarios:
- If the first proceeding was tainted by fraud or dishonesty – in the present circumstances, this had no application;
- If Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results – Adjudicator Norris concluded that the Applicant’s catastrophic impairment reports were not fresh evidence because they were available when the Applicant applied for reconsideration. He also concluded that the CAT reports would also not conclusively impeach the original hearing results because Adjudicator Johal relied on the family physician records in coming to his determination;
- or if fairness dictates that the original result should not be binding in the new context – Adjudicator Norris concluded that based on rule 18.2(d) of the LAT Common Rules of Practice and Procedure, if the Applicant believed that the CAT reports would likely have affected the outcome of the initial decision, it was incumbent on her to submit the reports in a request for reconsideration and it would be unfair to permit the Applicant to proceed with a new hearing on this evidence when she already had the opportunity to present it.
On this basis, Adjudicator Norris applied the res judicata doctrine and barred the Applicant from proceeding with her application.
The effect of this decision has now effectively barred the Applicant from proceeding with her AB claim as she will surely be shut out by the LAT in any future disputes. This decision is a cautionary tale for Applicants’ counsel for them to obtain all necessary medical evidence in advance of a hearing to prove their client’s injuries in the first instance, and if they are unsuccessful at first instance it is their obligation to appeal the decision or risk losing this opportunity in the future. The appeal structure at the LAT is in place for a reason and will be reinforced by Adjudicators. It is also a warning that counsel who strategically wage a “war of attrition” by bringing numerous disputes before the LAT in succession, as they slowly build the claim, risk being shut down on subsequent claims if the foundation of the claim is rejected in the initial dispute. Res Judicata is alive and well at the LAT, it is predicted that we will be seeing more decisions following this lead.
Ashley A. Shmukler is a member of the LAT practice group at the firm and the author of this blog. If you have a question about this decision, or a similar file, please contact Ashley at 647-427-3363.
