MIG Update – May 2, 2022
Res Judicata Not Readily Adaptable to SABS
This week a MIG case that was before the Tribunal for a 2nd time. The Tribunal discusses how the common law doctrine of res judicata – (the thing that has been decided) does not fit neatly in the SABS provisions, remarking that impairments resulting from motor vehicle accidents are not static and medical conditions could worsen over time giving rise to further review.
Res judicata is a discretionary remedy requiring:
- Four prerequisites that must be established
- Entitlement to the earlier benefits in dispute cannot be relitigated
- Fresh, new evidence previously unavailable
The Tribunal’s discussion here is a good point of reference when examining the potential for re- litigating an issue.
Advance your best case with an Outcome Analysis Report – Request an OAR through live chat!
Factor: Res Judicata – Not Readily Adaptable to the SABS
In Kanama v. Waterloo Insurance (19-006369), Malosa Kanama, was involved in an accident on February 21, 2016. Kanama was before the LAT in November 2017 (17-001265) where it was determined Kanama’s injuries were in fact minor. This was further affirmed by reconsideration in January 2019.
Kanama, relying on the Clinical Notes and Records (CNRs) of his family physician and treating specialists submitted that his condition had worsened since the 2017 decision.
Waterloo Insurance argued that the question of the applicability of the coverage limit is subject to the legal doctrine of res judicata, since the MIG had been decided, and sought a dismissal of the issue.
The Tribunal held:
- Kanama met the 4 prerequisites to establish res judicata;
- The two actions must involve the same parties or their privies;
- The claim sought to be asserted must have been within the prior court’s jurisdiction;
- Prior adjudication must have been on the merits;
- The prior decision must have been a final judgment.
- The concept of res judicata is a discretionary remedy which “dovetails with the more flexible mandate of the Schedule, but, as with all discretionary remedies, it must be exercised judicially”
- The “test for exercising discretion in res judicata cases” is set out in the Supreme Court of Canada decision in Toronto (City) v. C.U.P.E., Local 79 and Kamana met one of the tenants of the test that would entitle him to bring forward “fresh, new evidence, previously unavailable, conclusively impeaches the original results.”
- “There are two elements to this ground: fresh, new evidence, previously unavailable and that the new evidence is conclusive.”
- Kamana’s new evidence that purported to show he suffered from chronic pain was the same types of complaints presented to the Tribunal in the 2017 Hearing. The 2017 decision considered the Applicant’s psychological impairment, chronic pain, and pre-existing condition, and concluded they all fell within the MIG.
- There was no conclusive evidence that Kamana’s condition deteriorated from his medical condition as presented to the Tribunal in 2017.
- The imaging studies of his back showed no change
- Treating physiatrist Dr. H. Amani did not change his recommendations.
If you Have Read This Far…
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 24% of the decisions so far. Each case is nuanced, but with similar factors.
Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Need an OAR?