Each application for ACB is a new application - res judicata does not apply - MK v Aviva Insurance Canada, 2017 CanLII 59502 - ON LAT 16-003909

September 26, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

MK v Aviva Insurance Canada, 2017 CanLII 59502 - ON LAT 16-003909

Heard Before: Adjudicator Susan F. Mather
Date of Decision: September 7, 2017                                                        

LAT – Reapplication for further ACB benefits under LAT in case handles by FSCO; is the case res judicata or not? LAT arbitrator determines that each application for ACB is a new application thus res judicata does not apply

DECISION ON PRELIMINARY ISSUE

OVERVIEW

MK is seeking an attendant care benefit in the amount of $3,498.49 per month for the period August 1, 2016 to date and ongoing and interest on any overdue payments pursuant to the SABs.  MK is designated catastrophically impaired within the meaning of the Schedule.

 At a Case Conference held on March 16, 2017, a written hearing was ordered to determine the preliminary issue of whether the doctrine of res judicata prevents MK from having his application heard by the Licence Appeal Tribunal (“ the LAT”)

Aviva argues that MK’s entitlement to attendant care benefits was fully decided at the FSCO by Arbitrator Marcel Mongeon on October 31, 2016, and that MK must either appeal or apply to vary the order of the Arbitrator in accordance with the provisions of the Insurance Act which provide for appeals and applications to vary orders of Arbitrators to be heard by the Director of arbitrations.

MK disagrees and argues that the Schedule permits more than one application for attendant care benefits and that Aviva is unnecessarily delaying the proceeding and undermining an expeditious resolution of MK’s accident benefit claim.

PRELIMINARY ISSUE TO BE DECIDED

1. Is the issue of entitlement of attendant care benefits subject to res judicata as per FSCO decision of Arbitrator Mongeon’s dated October 31, 2016?

RESULT

1. The issue of MK’s entitlement to attendant care benefits and interest for the period August 1, 2016 to date and ongoing is not res judicata and MK is entitled to have his claim heard by the LAT.

Analysis

MK was injured in a car accident on June 4, 2013. On April 29, 2014 MK applied to FSCO for arbitration of his claim for attendant case benefits, catastrophic impairment designation and housekeeping and home maintenance expenses.

The application before the FSCO Arbitrator was for three specified periods of time:

•        June 4, 2013 to July 27, 2013 at $6,000 per month

•        July 28, 2013 to December 31, 2013 at $3,526.34 per month

•        May 20, 2015 and ongoing at $6,000 per month

The FSCO Arbitrator found “MK is entitled to attendant care benefits at the rate of $ 3,526.34 from September 15, 2013 to December 31, 2013. No other benefit is payable.”

Aviva argues that the FSCO Arbitrator’s statement “No other benefit is payable” is a prospective order and the only remedy available to MK to obtain attendant care benefits is to appeal or seek to vary the order of the Arbitrator.

MK argues that the FSCO Arbitrator’s statement is not a prospective order and the Schedule allows MK to file another claim for attendant care benefits. MK submits that the Arbitrator’s use of the present tense in finding “No further benefit is payable” establishes the scope of the decision.

The doctrine of res judicata prevents a party from re-litigating a dispute that has already been decided. It is based on the principles of finality in decisions, preventing duplicate litigation, inconsistent decisions, undue costs and inconclusive proceedings. It is generally accepted that there are four prerequisites to be established before a  finding of res judicata may be made:

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;
4. The prior decision must have been a final judgment.

The LAT Arbitrator found that the doctrine of res judicata does not apply to this LAT application because:

1. MK’s claim for attendant care benefits for the period from August 01, 2016 and ongoing has not been previously adjudicated on the merits and;
2. The decision of the Arbitrator is not a final judgment on the issue of MK’s entitlement to future attendant care benefits.

Res judicata is a discretionary remedy which has limited application in disputes for ongoing benefits under the Schedule because the Schedule allows an insured to file multiple applications for some benefits.

The attendant care benefit application before LAT was made on November 11, 2016 and is based on two Form 1s dated August 9, 2016 and September 12, 2016. The application claims benefits for the period August 1, 2016 and ongoing.  Significantly, on page 8 of his decision the FSCO Arbitrator acknowledges that Aviva conducted an Insurer’s examination shortly before the August 2016 hearing. He states that both the results of the examination and the Form 1 were not available to him at the time of the hearing.

In Arbitrator Mathers’ view this statement confirms that the August 9, 2016 Form 1 was not heard on its merits by FSCO.  The September 12, 2016 Form 1 was not submitted until after the FSCO hearing ended and for that reason could not have been considered by the Arbitrator.

Arbitrator Mather’s agreed with MK that the Arbitrator’s statement that “No other benefit is payable” is not a prospective order but it is simply a statement that no further benefits claimed in the application for arbitration before him were payable. The FSCO Arbitrator found that as of the date of the hearing MK did not meet the test for attendant care benefits beyond December 31, 2013.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.