Volume. 7 Issue. 39 – October 25, 2023
This week, the Tribunal considers whether an Applicant is entitled to proceed with an application for a CAT impairment designation, following an earlier decision of the Tribunal, in which the Applicant’s evidence had been determined as unreliable.
inHEALTH MEDIATION EVENT
(December 4-8, 2023)
Limited Availability – Resolve your high-risk AB cases now!
inHEALTH Mediation expedites the resolution of your high-risk CAT, IRB and Tolling Agreement cases.
Gather some tough cases that you want to resolve and let’s get the parties talking. You can reserve multiple time slots or even a full day. Learn more…
Applicant Not Allowed to Proceed With CAT Determination
Abuse of Process – In a decision rendered April 2022, the Tribunal dismissed in its entirety an Application brought by the Applicant Wang. Wang had sought entitlement to the costs of s.25 CAT assessments, the cost of an attendant care assessment, and an OCF-18 for chiropractic services. Shortly thereafter, Wang brought a further Application, seeking a CAT impairment designation, in addition to an OCF-18 for physiotherapy. In 20-009692 v Co-Operators, the Tribunal considered whether Wang was barred from proceeding with this new application given that the Tribunal had made a previous determination on the reliability of the applicant’s evidence.
It was the position of Co-Operators that Wang was barred from proceeding, as “the Tribunal has made a previous determination on the reliability of the applicant’s evidence, and the Tribunal cannot now arrive at different findings of fact based on largely identical evidence without undermining the adjudicative process… the current application with the Tribunal is an abuse of process.”
Wang however countered that the issues being brought were not the same as the prior application, there was new evidence with respect to this filing, and “it would be an abuse of process to bar the applicant from bringing this application with further issues just because a previous decision was rendered.”
The Tribunal ultimately found that Wang was barred from proceeding for a CAT determination, as to allow it to proceed would constitute an abuse of process. Reference was made to what was said to be the leading case on the common law doctrines of res judicata, collateral attack, and abuse of process, Toronto (City) v. C.U.P.E., Local 79. This decision stood for the proposition that the “doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute…Rather than focus on the motive of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process.”
For the within matter, it was indicated that the “Tribunal has already determined, based on largely identical evidence, that the applicant does not have even moderate levels of functional impairment from a physical or mental perspective…there were many glaring inconsistencies in the applicant’s self reporting and other evidence which weakened all the medical opinions in support of her claim.” While the earlier decision was not concerning a CAT determination, “it did determine that based on the evidence presented then that the applicant failed to demonstrate that any further investigation of whether she was CAT was reasonable and necessary, as she did not suffer from psychological impairments or physical impairments that would point to even moderate levels of functional impairment.”
Further, the Tribunal found that Wang “failed to provide new evidence that demonstrates her health psychologically and physically have changed… failed to demonstrate that there is a material change.” Wang was “relying on essentially the same evidence that has already been considered by the Tribunal and a determination has been made.” The Tribunal agreed with Co-operators that Wang was “asking the Tribunal to re-weigh the earlier evidence and come to a different result and that this would compromise the integrity of the LAT adjudicative process.”
Accordingly, “the integrity of the Tribunal’s adjudicative process would be significantly undermined if the current application seeking a CAT designation under criterion 8 proceeded forward, because the adjudicator would need to re-weigh the earlier evidence provided in the previous application.” Wang was also barred from proceeding with the claim for physiotherapy, as there was reliance upon “the same evidence when the Tribunal has previously already determined that the applicant has demonstrated limited physical injuries as a result of the accident and, more importantly, found the applicant to be unreliable.”
Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!