Released Date: 09/16/2020
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:
[B.A.A]
Applicant
and
Certas Direct
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Nader Fathi, Paralegal
For the Respondent:
Jonathan Schrieder, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant was involved in an automobile accident on October 17, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2A case conference was held and the parties were not able to resolve the issues in dispute. The matter proceeded to this written hearing.
3On June 15, 2020, I issued an order which was sent to both parties’ legal representatives by email indicating that the Tribunal was missing a part of the applicant’s document brief. The applicant’s document brief was uploaded electronically in ten different parts and the Tribunal was missing part seven. Further, I also indicated that the document brief was not page numbered contrary to the Tribunal’s earlier order dated October 11, 2018. I requested that the applicant refile her document brief by July 15, 2020 and to ensure that the pages were numbered. I also indicated that if the applicant failed to comply with this request that a determination may be made in the absence of these documents. To date, the applicant has not responded to or complied with this request.
4On July 21, 2020, I issued a second order which was sent to both parties’ legal representatives by email indicating that the applicant failed to comply with my earlier order dated June 15, 2020. I also highlighted the fact that the applicant’s submissions and document brief were in non-compliance with the Tribunal’s initial case conference order dated October 11, 2018. In particular, the applicant’s document brief was 700 pages and it was not clear what evidence was missing because the brief was not tabbed or page numbered and was not referred to in her submissions. The parties were also directed not to submit documents that are not directly relevant to the issues in dispute and to pinpoint relevant tabs and page numbers in their submissions. I ordered the applicant to refile her document brief in compliance with the Tribunal’s orders dated June 15, 2020 and October 11, 2018. Further that the document brief should be amended to include only those CNRs relevant to the issues in dispute.
5The applicant was provided with a deadline of August 4, 2020 to comply with my request and she was also given notice pursuant to Rule 3.5 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”) that her application may be dismissed for failing to submit a useful evidentiary record and for her non-compliance with the Tribunal’s orders. The parties were also invited to file written submissions regarding the Tribunal’s intention to dismiss this application by August 31, 2020, in the event that the applicant failed to comply with my request.
PRELIMINARY ISSUE
6Should the applicant’s application be dismissed for failure to comply with the Tribunal’s orders?
ISSUES IN DISPUTE
7The following substantive issues are in dispute:
i. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week ongoing from October 24, 2017?
ii. Is the applicant entitled to receive a medical benefit in the amount of $854.75 for other assistive devices services recommended by Promed Rehab Clinic in a treatment plan that was submitted on March 15, 2018, denied by the respondent on March 30, 2018?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,588.75 for medical services recommended by Toronto Medical Centre in a treatment plan that was submitted on May 14, 2018, denied by the respondent on May 30, 2018?
iv. Is the applicant entitled to receive a medical benefit in the amount of $1,992.81 for chiropractic services recommended by Toronto Medical Centre in a treatment plan that was submitted on March 22, 2018, denied by the respondent on April 7, 2018?
v. Is the applicant entitled to receive a medical benefit in the amount of $1,765.20 for medical services recommended by Promed Rehab Clinic in a treatment plan that was submitted on March 13, 2018, denied by the respondent on March 30, 2018?
vi. Is the applicant entitled to receive a medical benefit in the amount of $3,671.48 for psychological services recommended by Promed Rehab Clinic in a treatment plan that was submitted on July 20, 2018, denied by the respondent on August 15, 2018?
vii. Are the applicant’s injuries predominantly minor as defined in the Schedule and subject to treatment within the Minor Injury Guideline?
viii. Is the applicant entitled to receive an award under Ontario Regulation 664 because the respondent unreasonably withheld the payment of income replacement benefits?
ix. Is the applicant entitled to receive interest on the overdue amounts?
ANALYSIS
Should the applicant’s application be dismissed without a hearing for failure to comply with the Tribunal’s orders?
8This matter is dismissed without a hearing as I find that the applicant has abandoned her appeal.
9Rule 3.1 provides that the Tribunal ensure an efficient, proportional, and timely resolution of the merits of a proceeding. In my view, the two orders issued by the Tribunal on June 15 and July 21, 2020, was an attempt to achieve its mandate. However, the Tribunal was prevented from rendering a timely decision in this matter as a result of the applicant’s non-compliance with the Tribunal’s orders.
10Rule 3.4 provides that the Tribunal may dismiss an appeal without a hearing if the party filing the appeal has abandoned the proceeding. Rule 3.5 permits that prior to the Tribunal dismissing a matter without a hearing, the Tribunal must 1) give parties notice of its intention to dismiss, 2) provide the reasons for its intentions to dismiss, 3) inform the parties of their right to make written submissions to the Tribunal, and 4) consider any written submissions provided.
11Rule 4.4. requires a party to notify the Tribunal promptly of any change in their contact information.
12Rule 6.1 provides that the Tribunal may serve a document on a party by email. I am satisfied that by emailing both orders to the applicant’s representative’s last known email address that the Tribunal complied with its Rules and that the applicant did in fact receive the Notice from the Tribunal of its intention to dismiss this application. In addition, I am satisfied that the applicant was given adequate time to comply with the Tribunal’s orders as she was provided with 30 days in-between each order to comply with the Tribunal’s request.
13Since both emails attaching the Tribunal’s order were not returned as non-deliverable, I conclude that the applicant chose not to cooperate. I am further satisfied that the applicant was advised that if she did not comply with the Tribunal’s order that her appeal could be dismissed, or a decision could be rendered. Since the Tribunal has not received a response from the applicant, her application relating to the issues in dispute as highlighted above is dismissed as abandoned.
14The respondent filed submissions requesting that three applications filed by the applicant be dismissed. Further, the respondent requested that I render a decision barring the applicant’s future claims for benefits for failing to dispute her entitlement to same within the two-year limitation period. To be clear, this decision only deals with the issues outlined in the Tribunal’s case conference order dated October 11, 2018 and not the issues referred to in the other two applications. Secondly, I will not render a decision barring the applicant from disputing her entitlement to other benefits as this was not properly raised as a preliminary issue at a case conference. Therefore, it would not be procedurally fair to the applicant as she was not provided with adequate notice. The remedies requested by the respondent are therefore dismissed.
ORDER
15For all of the above-noted reasons this application is dismissed as abandoned.
Released: September 16, 2020
__________________________
Rebecca Hines
Adjudicator