J.D. v. Aviva Insurance Canada, 2020 CanLII 57418

Citation: J.D. v. Aviva Insurance Canada, 2020 ONLAT 19-005026/AABS

Released Date: July 23, 2020

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:

J.D.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Tanjoyt Deol – Did Not Appear

Counsel

For the Respondent:

Ramandeep Pandher

Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant J.D. (“applicant”), was involved in an automobile accident on December 31, 2015 (“accident”). The applicant sought benefits from the respondent Aviva Insurance Canada (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”). The applicant has applied to the Tribunal for dispute resolution.

2Pursuant to The Tribunal’s case conference Order made November 14, 2019, on consent of counsel for the applicant and counsel for the respondent, the applicant’s submissions and evidence for the written hearing were due by April 14, 2020. The respondent’s submissions and evidence for the written hearing were due by April 28, 2020.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $2,460.00 for psychological assessment recommended by Dr. Mills in a treatment plan (OCF-18) submitted on April 26, 2017, and denied on May 7, 2017?

ii. Is the applicant entitled to interest on any overdue payment?

RESULT

4The applicant is not entitled to the medical benefit claimed as the applicant has failed to prove it is reasonable and necessary for injuries directly attributable to the accident. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed. No costs are awarded to the respondent.

LAW

5Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.²

ANALYSIS

Is the Disputed Medical Benefit Reasonable and Necessary?

6The applicant bears the onus to prove that the disputed treatment plan is reasonable and necessary and to prove the claim for interest and I find that the applicant has failed to meet this onus. The applicant failed to serve and file any written submissions and evidence for the written hearing by April 14, 2020 with the result that there is no evidence to support the applicant’s application for the disputed medical benefit.

7The respondent submits that the applicant has abandoned this claim and seeks an Order dismissing the application with prejudice against the applicant and an Order for costs.

8The respondent requests costs but fails to set out specific reasons why costs should be awarded. Based solely on the failure to file written submissions and evidence for this written hearing, I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Safety, Licencing Appeals & Standards Tribunal Ontario Common Rules of Practice & Procedure, October 2, 2017. No costs are awarded to the respondent.

Interest

9As no benefits are payable, no interest is payable.

ORDER

10For the reasons outlined above, the applicant’s claim is dismissed. No costs are awarded to the respondent.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).