Licence Appeal Tribunal
Tribunal File Number: 18-004297/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:
Z.L.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES
For the Applicant: No appearances
For the Respondent: Brian Yung, Rob Ballardo
Written Hearing: October 21, 2019
OVERVIEW
1The applicant, Z.L., was injured in a motor vehicle accident on May 20, 2015 and sought benefits from the respondent, Certas Direct, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the "Schedule").
2Certas denied Z.L.'s claims for an income replacement benefit and three costs of examinations on the basis that the treatment plans were not reasonable and necessary and that his injuries fell within the Minor Injury Guideline. Z.L. disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for dispute resolution.
3An initial case conference was held in October 2018, but the parties were unable to come to a resolution because a Mandarin interpreter was not present to assist Z.L. A case conference resumption was held, and the parties participated but were unable to resolve the issues in dispute. The Case Conference Order dated October 22, 2018 confirms that a written hearing was set to commence on March 11, 2019, on consent.
4The submission deadline for Z.L.'s materials came and went without communication from Z.L. In the meantime, Certas filed several motions with the Tribunal indicating that Z.L. had not complied with the submission deadlines outlined in the Case Conference Order. In the absence of the information requested or initial submissions on the issues in dispute, Certas advised that it would be unable to file proper responding submissions by its deadline and that an extension would be sought.
5In correspondence dated February 28, 2019, Z.L.'s counsel advised that he had not received any instructions from Z.L. on how to proceed with his claim. Attempts to contact Z.L. by the Tribunal were unsuccessful. Further, there was no indication that Z.L. had retained new counsel or whether he intended to proceed as a self-represented applicant.
6As a result, on March 3, 2019, Certas submitted a motion to the Tribunal that the application should be dismissed as abandoned. The motion was set to be heard at the scheduled event, being this written hearing. On July 31, 2019, Z.L.'s former counsel confirmed that he was no longer representing Z.L.
7Accordingly—and in the absence of submissions and evidence from either party—the matter proceeded to this written hearing.
ISSUES IN DISPUTE
8The following are the issues to be decided as per the Case Conference Order, dated October 22, 2018:
(i) Are the applicant's injuries predominantly minor injuries as defined in the s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?
(ii) Is the applicant entitled to receive a weekly income replacement benefit in the amount of $262.50 per week for the period May 20, 2016 to May 19, 2017?
(iii) Is the applicant entitled to receive the cost of examination from HAL Disability Management for the following:
(a) Physiatry Assessment in the amount of $2,200, submitted on December 7, and denied on December 15, 2017?
(b) An Orthopaedic Assessment in the amount of $2,200, submitted on December 7, and denied on December 15, 2017?
(iv) Is the applicant entitled to receive the cost of examination from Excel Medical Diagnostics for a Psychiatric Assessment in the amount of $2,200, submitted on December 12, and denied on December 30, 2017?
(v) Is the applicant entitled to interest on any overdue payment of benefits?
(vi) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
9The appeal is dismissed, as I find that Z.L. has abandoned his application and has not presented a case.
ANALYSIS
10I find, overwhelmingly, that Z.L. has abandoned his application. The Tribunal provided Z.L. with numerous opportunities to proceed, including additional time to make submissions, secure new counsel, an invitation to discuss the extension of the submission deadlines for the written hearing and the opportunity to respond to the various motions filed by Certas.
11To date, Z.L. has not complied with any of the Tribunal's directions or accommodations.
12Pursuant to Rule 3.4(d) of the Tribunal's Common Rules of Practice and Procedure, the Tribunal can dismiss an appeal without a full hearing if the appellant is found to have abandoned the proceeding. Z.L. was provided with proper notice of the written hearing, was included in all of the correspondence between the parties, did not provide direction to his counsel on how to proceed and failed to make submissions on Certas' motion to dismiss. In my view, when Z.L. failed to notify the Tribunal on his intentions to proceed, this matter should have been dismissed.
13In any event, Z.L. has not complied with any of the submission deadlines provided for in the Case Conference Order, did not communicate with counsel or the Tribunal and did not make submissions on his entitlement to the benefits in dispute. Accordingly, there is no information or evidence before the Tribunal because Certas has nothing to respond to and does not have to make its case. As the onus is on Z.L. to prove his entitlement and he has not presented a case, the Tribunal cannot find in his favour.
14As a result, I find Z.L. is not entitled to any of the benefits in dispute.
CONCLUSION
15For these reasons, Z.L.'s application is dismissed.
Released: October 24, 2019
Jesse A. Boyce, Adjudicator