Res judicata does not apply - case can be heard - MK and Aviva - 16-003909 v Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT)

October 18, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

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

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

PAST ATTENDANT CARE: Previous FSCO ruling does not prevent case being heard before LAT; doctrine of res judicata does not apply in this case

MK is seeking an ACB 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 LAT.

Aviva argues that MK’s entitlement to ACBs was fully decided at the FACO 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 ACBs and that Aviva is unnecessarily delaying the proceeding and undermining an expeditious resolution of the applicant’s accident benefit claim.


  1. Is the issue of entitlement of ACBs subject to res judicata as per Financial Services Commission (FSCO) decision of Arbitrator Mongeon’s dated October 31, 2016?


  1. The Arbitrator found that the issue of the applicant’s entitlement to ACBs 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.

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

MK argued that the Arbitrator’s statement is not a prospective order and the Schedule allows MK to file another claim for ACBs. 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 Adjudicator reviewed the evidence and the law, and noted that he 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 Adjudicator found that the doctrine of res judicata does not apply to this LAT application because:

  1. The applicant’s claim for ACBs 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 the applicant’s entitlement to future ACBs.

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 application is adjourned to a full hearing on the merits of the attendant care benefit and interest claims. The hearing date and format of the hearing will be set by the Tribunal at a Case Conference to be scheduled in consultation with the parties.

Posted under Accident Benefit News, Attendant Care Benefits, Automobile Accident Benefits, Catastrophic Injury, LAT Case, LAT Decisions, Personal Injury

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