An Ontario auto insurer beat back a renewed attendant care claim after a tribunal ruled the applicant could not relitigate a decided matter.
The Licence Appeal Tribunal dismissed the applicant's push for attendant care benefits she pegged at more than $10,000 per month, finding the doctrine of collateral attack blocked her from reopening an issue already resolved.
An earlier Tribunal decision, released October 20, 2023 and later upheld in Divisional Court, had found the applicant entitled to attendant care of $905.34 per month. She later filed a new attendant care assessment and argued her needs had changed, warranting a fresh hearing on supervisory care. The adjudicator disagreed, noting she pointed to gaps in her earlier proceeding rather than any specific change in her health.
The applicant leaned on evidence from a psychiatrist and a treating neuropsychiatrist to support supervisory care. But the adjudicator found the prior decision had already addressed the points she now raised, and those findings had not changed. Letting new evidence reopen a settled issue, he wrote, would produce "endless legal proceedings with no finality."
Claims professionals will find a sharper lesson in how the insurer's own procedural defence failed. The insurer argued the applicant was barred from proceeding because she skipped insurer examinations arranged under section 44 of the Statutory Accident Benefits Schedule. Section 55 can preclude an insured from applying to the Tribunal where they fail to attend a required examination.
The adjudicator refused to consider the section 55 bar. Although no statute requires an insurer to flag the defence in advance, he found the Tribunal's established practice and its own practice direction created a reasonable expectation that a section 55 defence be raised at the case conference. The insurer had not done so, and the applicant was prejudiced by learning of it only in the insurer's opening statement.
The applicant also targeted the insurer's defence team, alleging its counsel had made adjustment decisions on her file - a role not permitted under the Insurance Act - and pointing to a log note describing a step taken on direction from DC, an abbreviation both sides agreed referred to defence counsel. The adjudicator read that as counsel offering a recommendation, not acting as an adjuster, and dismissed a related bid to refer counsel to Divisional Court for contempt over a former adjuster's withheld address.
The applicant also fell short on a raft of disputed treatment plans and invoices. The adjudicator found she made no pinpoint references to the evidence and failed to show the plans were reasonable and necessary. With no benefits overdue, she was not entitled to interest, and no award under section 10 of Regulation 664 was payable.
Even so, the insurer did not get everything it wanted. Its late request to have the applicant repay benefits and to terminate her attendant care was rejected, the adjudicator finding the insurer had given none of the required notice. The decision was released July 7, 2026.
