MIG Update – March 10, 2025
Res Judicata Waived on New Evidence
This week, a MIG case where the Tribunal considered whether res judicata was applicable or should be waived.
The doctrine of res judicata operates to bring finality to legal proceedings as well as to prevent duplicate litigation, inconsistent decisions, undue costs and inconclusive proceedings. There are four preconditions that must be established before an adjudicator can determine whether to exercise their discretion to apply res judicata. The four factors are:
i. The parties must be the same in both actions;
ii. The prior claim must be within the jurisdiction of the Tribunal;
iii. The prior adjudication must have been on the merits; and
iv. The prior decision must have been a final judgment.
The Applicant had a previous decision on the MIG on merit before the Tribunal that was final. Having satisfied the preconditions, the Tribunal then had to consider whether to use its discretion to uphold or waive res judicata. Following Toronto (City) v. C.U.P.E res judicata can be waived in the following situations:
i. The first proceeding is tainted by fraud or dishonesty;
ii. Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or
iii. When fairness dictates that the original result should not be binding in the new context.
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Factor: Res Judicata
In Hazell v. Aviva (22-003874), Victoria Hazell was involved in an accident on November 27, 2017. She had previously been found to be in the MIG in 19-010289 v. TD of note, it appears that it was erroneously cited but it is an Aviva case.
Hazell submitted that since the April 28, 2022 decision she procured medical documentation which had not been available to the Tribunal at the time of the initial decision that would have resulted in removal from the MIG. Having met the pre-conditions, the Tribunal exercised its discretion on the basis of fresh new evidence that was previously unavailable that would conclusively impeach the original results.
In this instance Hazell submitted she should be removed from the MIG due to chronic pain and a psychological impairment as she continued to have persistent pain and mild supraspinatus tendinitis in her shoulder and that she remained symptomatic despite receiving treatment for a year. She relied on new records from Dr. Lam, pain specialist, a report from rheumatologist D. Samadi and; CNR’s from her family doctor, Dr. Kako. With respect to psychological impairment She relied on psychiatrist Dr. Ghebrehariat’s June 2023 report diagnosing her with Generalized Anxiety Disorder, PTSD, Major Depressive Disorder, and Complex PTSD. She submitted she underwent psychotherapy starting in May 2023.
Aviva on the other hand submitted that the evidence suggested that Hazell did not suffer functional impairment due to chronic pain. It noted that following the accident she progressed in her hairstyling career into owning her own business and competing in hairstyling competitions. It noted that she was driving, exercising in the gym, and living an active lifestyle. It relied on physiatrist Dr. Oshidari’s April 2018, August 2018 and May 2021 reports concluded that Hazell suffered sprain/strain and contusion injuries.
Aviva submitted that Hazell saw Dr. Ghebrehariat after she lost the previous hearing on the MIG and the report, prepared more than five years after the accident, did not accurately reflect her accident-related condition and that the diagnoses were completely at odds with the totality of the medical evidence. It relied on psychologist Dr. Challis’ May 2018 and August 2018 reports that Hazell did not present with any psychological symptoms from the accident.
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The Tribunal found:
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- There was no evidence of a significant decrease in her physical fitness or ability to work as a hairstylist or that she suffered a functioning impairment. Contrary to her submissions, Dr. Marchie’s July 2018 report did not recommend that she continue with therapy, and there was no evidence that she had a follow-up assessment. Pain consultant Dr. Lam’s October 2021 note did not diagnose chronic pain or discuss her level of pain or functional impairment.
- Rheumatologist Dr. Samadi’s December 2022 assessment did not diagnose chronic pain, and while he advised Hazell that if physical therapy did not benefit her she could return for a steroid injection, there was no evidence that she had done so. Neither was there a chronic pain diagnosis in family doctor Dr. Kato’s CNRs and other than mentioning that her left shoulder was not better from the accident, no other physical complaints were made.
- There were no copies of denied Treatment Plans to support that funding for physiotherapy was denied by Aviva.
- While Hazell referred to reports and diagnoses from her treating psychologist, none of the records were provided. There were no CNRs documenting psychological complaints up to the June 2023 assessment by Dr. Ghebrehariat to corroborate his opinion.
- Further, Dr. Ghebrehariat noted that Hazell’s current medical condition impeded her ability to function to her fullest was contradictory to his findings that she attended the gym regularly, and worked 4-7 days a week and he provided no details of functional limitations.
- “While I accept that the applicant’s psychological condition might have changed subsequent to the report and findings of Dr. Challis, the applicant has not provided any CNRs supporting that she made psychological complaints or received any psychological treatment following the accident up to the date of the assessment by Dr. Ghebrehariat, more than 5-years post-accident. I find that the applicant has not provided sufficient evidence to support a finding that her psychological complaints merit removal from the MIG.”
Our MIG Monday series discusses the multitude of factors to consider when evaluating a risk position on MIG cases. The Tribunal has ruled on the MIG in 33% of the decisions so far. Each case is nuanced, but with similar factors.
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