Released Date: 02/22/2021
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:
Colette Francoeur
Applicant
and
Aviva General Insurance Company
Respondent
DECISION AND ORDER
VICE CHAIR:
Susan Mather
APPEARANCES:
For the Applicant:
Kathryn McRae Hill, Paralegal
For the Respondent:
Maggie Morgan, Counsel
Heard by way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was involved in an automobile accident on January 29, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits for physiotherapy, acupuncture and assistive devices by the respondent (“Aviva”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).1
2The applicant submits that the benefits she is seeking are payable either because Aviva did not properly deny the benefits or because the unpaid portions of the treatment plans and the physiotherapy provided by City Centre Physiotherapy are reasonable and necessary.
3Following two case conferences and a motion hearing, the application was schedule for this written hearing.
PRELIMINARY ISSUES
Admissibility of Report of Dr. Leon Steiner dated February 20, 2020
4Aviva objects to me considering the report of Dr. Leon Steiner dated February 20, 2020 as evidence in this hearing for two reasons:
Aviva submits that the applicant did not provide it with a copy of the report by the June 30, 2020 deadline set by the Motion Order dated June 2, 2020.2 Aviva submits that the report was served with the applicant’s hearing submissions after the June 30, 2020 deadline.
The report is irrelevant because it is authored by a psychologist and the issues in dispute do not deal with psychological treatment.
5The applicant submits that she provided the report to Aviva on June 29, 2020. She relies on Health Claims for Auto Insurance (“HCAI”) report dated June 29, 2020 to confirm delivery.
6The applicant also submits that the report is relevant it as it “confirms the serious issues of the Applicant considering the injuries have been ongoing since 2015”.
7Rule 9.4 of the Common Rules of Practice and Procedure3 (“the Rules” ) provides that, if a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.
8I am not satisfied that the HCAI report relied on by the applicant proves that the applicant complied with the June 2,