A.A. v. Aviva Insurance, 2017 CanLII 22311

Court File and Parties

Date: 2017-03-31

Tribunal File Number: 16-002670/AABS

Case Name: 16-002670 v Aviva Insurance

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits

Between:

A.A.

Applicant

and

Aviva Insurance

Respondent

DECISION

Adjudicator: Lori Marzinotto

Appearances:

Applicant: Did not attend

Representative for the Insurance Company: Did not attend
Counsel for the Insurance Company: Did not attend

HEARD in writing: March 14, 2017

Overview / Introduction:

1The applicant, A.A. was injured in an automobile accident on April 13, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”) which were denied by the Aviva Insurance (the “respondent”).

2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

3The parties participated in a case conference on December 6, 2016, but were unable to resolve the issues in dispute.

4The applicant, respondent, applicant’s counsel and respondent’s counsel attended the case conference by telephone.

Issues:

5The case conference Order sets out the following issues in dispute for the hearing:

i) Do the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

ii) Is the applicant entitled to receive a non-earner benefit in the amount of $185 per week for the period October 12, 2014 to the present date?

iii) Is the applicant entitled to receive a medical benefit in the amount of $1,796.50 for chiropractic services, recommended by Toronto Medical Centre in treatment plan submitted August 20, 2014 and denied by the respondent on September 8, 2014?

iv) Is the applicant entitled to receive a medical benefit in the amount of $1,121.83 for other goods and services of a medical nature, recommended by Toronto Medical Centre in a treatment plan submitted August 26, 2014 and denied by the respondent on October 28, 2014?

v) Is the applicant entitled to receive a medical benefit in the amount of $1,487.12 for chiropractic services, recommended by Toronto Medical Centre in a treatment plan submitted October 17, 2014 and denied by the respondent on November 4, 2014?

vi) Is the applicant entitled to receive a medical benefit in the amount of $1,104.31 for chiropractic services, recommended by Toronto Medical Centre in a treatment plan submitted November 27, 2014 and denied by the respondent on January 2, 2015?

vii) Is the applicant entitled to receive a medical benefit in the amount of $857.81 for chiropractic services, recommended by Toronto Medical Centre in a treatment plan submitted January 18, 2015 and denied by the respondent on January 23, 2015?

viii) Is the applicant entitled to receive a medical benefit in the amount of $1,995.33 for psychological services, recommended by Toronto Medical Centre in a treatment plan submitted February 5, 2015 and denied by the respondent on March 13, 2015?

ix) Is the applicant entitled to receive a medical benefit in the amount of $215.00 for chiropractic services, recommended by Toronto Medical Centre in a treatment plan submitted September 12, 2014?

x) Is the applicant entitled to interest on any overdue payment of benefits?

Result:

6The written hearing was convened on March 14, 2017 in accordance with the case conference Order.

7The applicant did not provide any written submissions or evidence in order to prove his case.

8The applicant bears the onus of proof in establishing entitlement to the benefits sought. I have received no evidence from the applicant. He has not proven his case.

9Accordingly, the Application is dismissed.

Background:

10The case conference Order sets out the date and form of the hearing. The case conference Order is clear that the written hearing will be held on March 14, 2017, and stated the deadlines for submissions.

11The parties agreed to proceed by way of a written hearing scheduled for March 14, 2017.

12The applicant was to provide his submissions no later than February 17, 2017.

13The respondent was to provide its submissions in response no later than February 27, 2017.

14Additional orders were made with respect to document productions and affidavit evidence.

15The Tribunal served the parties with the case conference Order on December 21, 2017.

16The Tribunal further served the parties with the Notice of Written Hearing on January 20, 2017.

17The Notice of Written Hearing reiterated the form of the hearing as well as the date of the hearing and deadlines for submissions from the parties.

18The Notice of Written Hearing clearly states the following:

If you do not make submissions, the Tribunal may make a decision without your participation in the hearing and without further notice to you.

19I do not find that a formal motion for a dismissal without a hearing is required in this case. Rule 3.4 and Rule 3.5 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”), are not applicable in this instance. The parties consented to a hearing to be held on March 14, 2017. The parties further consented to the deadlines for their submissions.

20Pursuant to Rule 3.7, no further notice is required following a failure to attend. No further notice is required to be given to the applicant in relation to the proceeding, given that he failed to provide written submissions, which is akin to not attending.

21Further, s.7(2) of the Statutory Powers Procedure Act (“SPPA”) states, where notice of a written hearing has been given to a party to a proceeding and the party does not participate in the hearing, the Tribunal may proceed without the party’s participation and the party is not entitled to any further notice in the proceeding.

22I did not receive an adjournment request of the hearing date or an extension of the deadline for the submissions. Accordingly, the hearing was convened in accordance with the case conference Order on March 14, 2017.

23I have no evidence upon which to find in favour of the applicant.

24I therefore find that the applicant is not entitled to the benefits sought in the Application and dismiss the Application.

ORDER

25Pursuant to the authority vested in me under s. 280(2) of the Act, I order that the applicant is not entitled to the benefits sought and the Application is hereby dismissed.