This is a case which considers the application of the doctrine of res judicata in the contest of a LAT Application seeking benefits in excess of the MIG limits as well as an Income Replacement Benefit (IRB) after a previous LAT decision (which was affirmed) establishing that Malosa’s injuries were considered minor.
The Applicant, Malosa Kanama (“Malosa”), was injured in a motor vehicle accident which occurred on February 21, 2016. He applied to Waterloo Insurance for Statutory Accident Benefits. The Insurer took the position that Malosa’s injuries were predominantly minor (MIG) and accordingly his entitlement was subject to the $3,500 coverage limit as set out in section 18(1). Malosa exhausted the available $3,500 in coverage. He filed a LAT Application disputing the MIG designation in March of 2017 which was unsuccessful, he requested a reconsideration of the decision and in January 2019 the LAT decision was affirmed establishing that Malosa’s injuries were considered minor.
Malosa filed the present LAT Application again seeking benefits in excess of the MIG limits as well as an Income Replacement Benefit (IRB). Waterloo raised as a preliminary issue:
Is the applicant precluded from proceeding with this claim for treatment as the Tribunal has already issued a decision that his injuries are predominantly minor, and that he is subject to the $3,500 coverage limit in s.18(1) of the Schedule?
Adjudicator D. Flude addressed the common law doctrine of res judicata as it may relate to the determination of MIG status for Malosa. Adjudicator D. Flude relied on the decision of 16-003909 v. AVIVA Insurance Canada, 2017 CanLII 59502 (ON LAT) which summarized the four requisite components to establish before a finding of res judicata can be made including:
1. The two actions must involve the same parties or their privies;
2. The claim sought to be asserted must have been within the prior court’s jurisdiction;
3. Prior adjudication must have been on the merits; and
4. The prior decision must have been a final judgment.
Adjudicator D. Flude also identified that other common law doctrines exist to bring finality to legal matters not meeting the strict 4 part test noted previously. Specifically, Adjudicator Flude relied upon the decision of Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63 (CanLII) being a criminal law decision which translated to all judicial and quasi-judicial decision makers.
Ultimately, Adjudicator Flude found that the four elements to establish res judicata were met. However, he noted at paragraph 9 that the difficulty he found was that these common law doctrines did not translate well to the Schedule. Specifically, Adjudicator Flude stated:
[9] My difficulty with the application of the various common law doctrines is that they are not readily adaptable to the Schedule. Impairments resulting from motor vehicle accidents are not static. While the Schedule has been much amended over the years, the version in force at the time of Mr. Kanama’s accident provided for the payment of medical and rehabilitation benefits for a period of ten years from the date of the accident. Having set a ten year entitlement period, the Legislature has indicated that it has contemplated the possibility that injuries leading to impairments that at first seem minor or inconsequential may deteriorate and require re-examination. Thus, Mr. Kanama cannot relitigate his entitlement to the earlier benefits in dispute, or the question of whether his impairments at that time were minor, but it remains open to him to bring forward evidence of recent deterioration lifting him out of the minor injury provisions.Adjudicator Flude followed up the foregoing stating that the analysis given had been favoured previously in the 16-003909 v. AVIVA Insurance Canada decision which was a decision addressing entitlement to attendant care for a period of time differing from a previously adjudicated period of time. The AVIVA decision states: res judicata is a discretionary remedy which has limited application to disputes for ongoing benefits under the Schedule because the Schedule allows an insured to file multiple applications for some benefits.
Adjudicator Flude accepted Malosa’s position that the test for applying discretion of the doctrine of res judicata is set out within Toronto (City) v. C.U.P.E. Local 79, at paragraph [52] of that decision the Court stated:
There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.
The Adjudicator found that Malosa could present fresh, new evidence, previously unavailable. However Adjudicator Flude noted the two parameters to this ground being (1) fresh, new evidence, previously unavailable and (2) that the new evidence is conclusive.
The Adjudicator ultimately determined that Malosa did not have fresh new evidence that was not readily available at the original hearing and the evidence was “far from conclusive”. Although he found Malosa was not subject to the doctrine of res judicata in terms of the previous decision finding his injuries sustained in the accident were predominantly minor and that the present LAT Application could proceed, he did not find that the medical evidence submitted by Malosa was in fact fresh, new evidence that was previously unavailable stating at paragraph [19] of the decision:
…There is no conclusive evidence that his condition in 2018 and 2019 has deteriorated from his medical condition as presented to the Tribunal in 2017. Thus, the Tribunal has ruled on these same medical conditions…
Adjudicator Flude found he had jurisdiction to make the finding on res judicata and allowed the LAT Application to proceed to a Case Conference on the outstanding IRB issues only, the previous MIG determination remained standing.
