S.P. v. Aviva General Insurance, 2020 CanLII 34467

Citation: S.P. v. Aviva General Insurance 2020 ONLAT 19-002199/AABS

Tribunal File Number: 19-002199/AABS

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

Between:

S.P.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Applicant: No appearances

For the Respondent: Rozlien Brikha, Counsel

Heard by way of written submissions

OVERVIEW

1S.P. (the "applicant") was injured in an automobile accident on September 1, 2017 and sought benefits from Aviva General Insurance (the "respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ ("Schedule"). The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service when the respondent denied his claims for benefits.

2The date for this written hearing was originally scheduled for January 13, 2020 but was adjourned at the request of the applicant. A case conference was then held on January 8, 2020, at which counsel for both parties attended. Adjudicator Lake scheduled a new written hearing for April 14, 2020.² In the case conference order, Adjudicator Lake identified the issues for this hearing which include whether the applicant sustained predominantly minor injuries as defined under the Schedule, entitlement to non-earner benefits, entitlement to medical benefits for physiotherapy under three different treatment plans, the cost of examination for orthopaedic and psychological assessments and interest.

3Further, as part of her Order, Adjudicator Lake stated that documents were to be exchanged by the parties on or before February 14, 2020 and set dates for written submissions and evidence to be filed for the hearing. The timetable was as follows:

(i) Applicant's Submissions Due: March 6, 2020

(ii) Respondent's Submissions Due: April 3, 2020

(iii) Applicant's Reply Submissions, if any, Due: April 10, 2020

4The applicant has not provided any written submissions to the Tribunal. The respondent's submissions were received on April 3, 2020.

RESULT

5The appeal is dismissed as I find that S. P. has not presented a case. Reasons follow.

ANALYSIS

6It is a well-established principle that an applicant has the onus of proving on a balance of probabilities entitlement to the benefits in dispute. Here, there is no evidence or submissions from the applicant before the Tribunal for its consideration.

7As noted above, this is the second written hearing date scheduled. Counsel for the applicant was present at the January 8, 2020 case conference at which the timetable for submissions and the hearing date itself were set out. I am satisfied, based on a review of the file material that the Tribunal sent the case conference order by email to the parties' counsel on or about February 3, 2020. The fact that the respondent has provided its submissions in accordance with the Order supports the conclusion that the parties received it in a timely manner. In addition, the Notice of Written hearing was sent to the parties and their respective legal representatives, by email, on February 4, 2020.

8There has been no communication from the applicant or his legal representative offering an explanation for his failure to make his hearing submissions in accordance with the Order, or requesting additional time to do so.

9Given that the onus is on S.P to prove his entitlement and he has not presented his case, the Tribunal cannot find in his favour. I note that there was nothing for the respondent to respond to and it does not have to make its case.

10In its submissions, the respondent seeks full indemnity for costs, in the amount of $8000. The respondent submits that the applicant has acted unreasonably, frivolously, vexatiously or in bad faith, thus, pursuant to Rule 19.1 of the Tribunal's Rules of Practice³, a costs award is warranted. There is no evidence before me of such conduct, but for the failure of the applicant to comply with the case conference order directing the exchange of documents and the filing of his submissions by March 6, 2020. The fact that the applicant failed to meet the deadlines set out in the Order has resulted in the dismissal of his application. In the circumstances, I do not find that an award of costs, pursuant to Rule 19 is warranted.

ORDER

11For these reasons, S.P.'s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Case Conference Order of Adjudicator Lake dated January 8, 2020 and released February 3, 2020
3. 3Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017)