MIG Update – May 12, 2025
Res Judicata Not Waived For New MIG Hearing
This week, the Tribunal considered if res judicata ought to be waived and whether the fresh new medical evidence that was previously unavailable would conclusively impeach the original result and would warrant removal from the MIG, an issue that was previously decided.
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Factor: New Medical Evidence
In Khatchadourian v. Wawanesa Mutual Insurance Company (24-008079), Anthony Khatchadourian was injured in an accident on May 8, 2020. The issue of applicability of the MIG was previously decided in a prior LAT decision of 21-008484, released January 2024. For the purposes of the present hearing, he provided substantial new medical evidence in support of his accident-related injuries to warrant removal from the MIG as well as 5 new treatment plans. He submitted that res judicata should be waived under the circumstances.
The new evidence included a chronic pain report dated October 2024 by GP Dr. Yim, a report by psychologist Dr. Steiner dated August 2024, CNRs of the treatment clinic, hospital records and CNRs of his former family physician Dr. Hany and his new family physician Dr. Sritharan. He argued that he developed psychological impairment and chronic pain over time as a result of the accident, which affected his ability to work. He also argued that Dr. Sritharan provided him with a medical note which indicated that he was unable to work from October 10, 2023 to October 18, 2023 for medical reasons. In addition, Dr. Steiner and Dr. Yim both recommend that he participate in a multi-disciplinary chronic pain program.
Wawanesa, argued that Khatchadourian should be barred from proceeding to a hearing by the doctrine of res judicata because the issue of applicability of MIG was already decided. It submitted that Khatchadourian did not file a reconsideration of the decision or an appeal. Although he obtained reports after the date of the previous decision, he failed to provide a reason why this new evidence was unavailable at the time of the previous decision.
Pre-Conditions for Res judicata
“The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. Three preconditions must be established before the adjudicator can determine whether to exercise discretion to apply the doctrine of res judicata, or more specifically issue estoppel, as set out by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para.25:
i. that the same question has been decided;
ii. that the judicial decision which is said to create the estoppel was final; and,
iii. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”
Conditions to Waive Res judicata
“As set out in Toronto (City) v. CUPE Local 79, 2003 SCC 63 at para. 52, res judicata can be waived in the following situations:
a) The first proceeding is tainted by fraud or dishonesty;
b) Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results or;
c) When fairness dictates that the original result should not be binding in the new context.”
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The Tribunal found:
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- The pre-conditions set out in Danlyuk v Ansowth were met as the parties were the same in both proceeds, the prior claim was within the jurisdiction of the Tribunal and the decision in first appeal was based on merits.
- The CNRs of family physician Dr. Hany indicated Khatchadourian was diagnosed with chronic low back pain before the accident. Dr. Hany completed a work limitation form dated November 2019 for lifting restrictions with no repetitive back movements. Moreover, Dr. Sritharan’s CNRs indicated that Khatchadourian requested time off work because he had a heavy job, and he injured his back lifting heavy boxes at home. Dr. Sritharan did not indicate the medical reasons for the time off work in October 2023 were accident related.
- The additional reports of Dr. Yim, Dr. Steiner or the CNRs of Dr. Sritharan were not sufficient to represent new evidence that was previously unavailable and would conclusively impeach the original results as they did not adduce any evidence of a deterioration or change in Khatchadourian’s medical condition since the previous hearing.
- The psychological symptoms were known to Khatchadourian at the time of the previous decision, since he reported to Dr. Steiner that his emotional problems and cognitive issues began less than six months after the accident.
- Dr. Yim reviewed the MRIs of the lumbar spine and left shoulder dated September 2020, which indicated degenerative disc disease with stenosis and supraspinatus tendinopathy. Similarly, Dr. Yim had also reviewed the consultation reports by orthopaedic surgeons Dr. Grant dated June 2021 and Dr, Young dated August 2018. This was not fresh evidence that was previously unavailable. These documents did not provide any evidence of a deterioration or change in Khatchadourian’s medical condition since the previous hearing. As such, Khatchadourian remained bound by the previous determination and was therefore barred from proceeding with his new Application.
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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