Tribunal File Number: 17-008904/AABS

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:

L. H.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Respondent:

Shivani Mehta, Counsel

HEARD:

In Writing on July 16, 2018

OVERVIEW

1The applicant was injured in an automobile accident on April 19, 2015 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2The respondent refused to pay for the benefits the applicant claimed. In response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

3A case conference was held on April 10, 2018 where the respondent raised several preliminary issues as outlined below. The parties were unable to resolve the issues in dispute at the case conference, and a hearing in writing was ordered to decide both the preliminary and substantive issues.

ISSUES

4The preliminary issues to be decided are as follows:

(1) Is the applicant barred from proceeding with the claim for the costs of examinations as the applicant failed to commence the application within two years after the respondent’s refusal to pay the benefit claimed?

(2) Is the applicant barred from proceeding with the claim for attendant care benefits for failure to notify the respondent of the circumstances giving rise to a claim for the benefits?

(3) Is the applicant is barred from proceeding with the claim for attendant care benefits and costs of examinations as the applicant failed to submit to an insurer’s examination under section 44 of the Schedule?

5The substantive issues to be decided are as follows:

(1) Is the applicant entitled to attendant care benefits in the amount of $1,057.67 per month for the period January 4, 2016 to-date and ongoing?

(2) Is the applicant entitled to payments for the costs of examinations in the amount of $2,248.90 for an in-home assessment, recommended by Complete Rehab in a treatment plan submitted on November 3, 2015 and denied by the respondent on January 4, 2016?

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

(4) Is the respondent entitled to costs due to the applicant’s behaviour being unreasonable, frivolous, vexatious, or in bad faith?

RESULT

6The applicant did not make any submissions or produce any evidence to support the application. Consequently, the applicant has not met the evidentiary burden required to prove entitlement to the benefits claimed. The appeal is dismissed.

7The respondent is entitled to costs in the amount of $125.00.

BACKGROUND

8The applicant filed an application with the Tribunal and attended at a case conference on April 10, 2018, following which the preliminary and substantive issues in dispute were ordered to a hearing in writing. The details of the hearing were discussed and arranged with the consent of the parties.

9A notice of written hearing was issued on May 23, 2018. The notice was delivered to counsel for the applicant and counsel for the respondent via fax. The notice was also sent to the applicant’s address on file via regular mail. The notice advised that the applicant was to make written submissions by June 21, 2018, followed by the respondent’s submissions by July 3, 2018, and the applicant’s reply submissions, if required, by July 13, 2018.

10The applicant did not serve any submissions on the respondent or file any submissions with the Tribunal.

11On July 3, 2018, the respondent served the applicant’s counsel by fax with submissions and evidence, and filed the same documents with the Tribunal. The respondent also provided a certificate of service, confirming this.

12In its written submissions, the respondent chose not to address the preliminary issues and focused on the substantive issues, and the applicant’s failure to make submissions or submit any evidence. Given neither party made submissions on them, the preliminary issues raised by the respondent at the case conference are not addressed in this decision.

13On July 9, 2018, counsel for the applicant advised the respondent and Tribunal that counsel was no longer representing the applicant due to a breakdown of the solicitor-client relationship. Counsel for the applicant provided the respondent and Tribunal with a forwarding address of the applicant which was different than the address on file with the Tribunal. At no time has the Tribunal been notified by the applicant of a change in contact information, despite the requirement in Rule 4.4 of the Common Rules of Practice and Procedure.

14On August 31, 2018, the Tribunal forwarded the respondent’s submissions and evidence to the applicant via email and by regular mail. The Tribunal asked the applicant to contact the Tribunal to provide a response. The email was returned by the server, noting the “mailbox unavailable”.

15On October 17, 2018, the Tribunal forwarded the respondent’s submissions and evidence by courier to the applicant’s address provided by former counsel for the applicant. The document was returned.

ANALYSIS

16Considering the facts outlined above, I am satisfied the applicant has received proper notice of the written hearing pursuant to Rule 6.1. The notice was mailed to the applicant’s last known address and delivered to the applicant’s representative by fax. In addition, I am satisfied the Tribunal made additional efforts to inform the applicant of the hearing in writing and the respondent’s submissions by attempting to deliver the notice and respondent’s submissions and evidence by email, regular mail to the last known address, and by courier to the forwarding address provided by former counsel for the applicant.

17The applicant has failed to provide any submissions or evidence for the hearing. The applicant has not replied to the respondent’s or the Tribunal’s correspondence regarding the hearing. I conclude the applicant has chosen not to proceed with the application and dismiss the application.

COSTS

18At the case conference, the respondent requested the hearing adjudicator answer whether the respondent is entitled to costs.

19The respondent claims entitlement to $1,000.00 in costs due to the applicant’s behaviour during the proceeding. The respondent submits the applicant’s behaviour has been frivolous and vexatious throughout the course of the proceeding.

20The respondent submits this application is the applicant’s third application appealing the same issues. With each application, the respondent submits, it maintained the same position with respect to the issues in dispute while the applicant has offered no additional evidence.

21Further, the respondent submits the applicant has unreasonably breached the Order dated April 10, 2018 by not providing the name and contact information of the attendant care provider and by not providing written submissions or reply submissions as ordered.

22Lastly, the respondent submits the applicant’s behaviour is frivolous in that, rather than withdrawing this application as done with previous appeals, the applicant chose to do nothing. The respondent submits this interfered with the Tribunal’s ability to carry out a fair and efficient process and characterized this as a waste of the Tribunal’s time and resources.

23Pursuant to Rule 19.1 of the Common Rules of Practice and Procedure, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

24Rule 9.5 provides a guideline of factors to consider when awarding costs. The factors include whether there was a breach of an order, whether or not the behaviour interfered with the Tribunals ability to conduct a fair and efficient process, the prejudice to parties, and the potential impact an order for costs would have on individuals accessing the Tribunal.

25I have reviewed the Rules and the facts of the matter before me and, for the following reasons, find the respondent is entitled to costs in the amount of $125.00.

26I agree with the respondent that the applicant has unreasonably failed to comply with the Order dated April 10, 2018 by not providing the name and contact information of the attendant care provider and by not providing written submissions. I further agree with the respondent that, by doing nothing, rather than making submissions or withdrawing, the applicant as acted frivolously. As such, the respondent is entitled to costs.

27I also consider the inherent power imbalance between the applicant, an individual, and the respondent, a large corporation, and how a cost award will impact the parties. Any cost award against an individual will have a much greater impact on them than it would on a corporation. Factoring in this and the maximum cost award of $1,000.00 for a full date of attendance at a motion or hearing, I find the cost award should be at the lower end of the scale.

28Also considered is the Tribunal’s ability to carry out a fair and efficient process. I conclude that the applicant’s inaction has not compromised the Tribunal’s ability to carry out a fair and efficient process. The hearing proceeded as scheduled, the parties were given opportunity to make submissions and provide evidence, and I have made my decision in favour of the respondent based on the submissions and the evidence – or lack thereof – before me. Considering the Tribunal was able to carry out a fair, effective, and efficient process despite the applicant’s lack of participation, I find further reason to render a cost award at the lower end of the scale.

CONCLUSION

29Based on the submissions and evidence before me, I find the applicant is not entitled to the disputed attendant care benefits and the cost of the in-home assessment. The applicant is not entitled to interest as no payments went overdue.

30The respondent is entitled to costs in the amount of $125.00 because the applicant’s behaviour during the proceeding was unreasonable and frivolous.

ORDER

31The application is dismissed, and the applicant shall pay costs to the respondent in the amount of $125.00.