Aviles v. Aviva General Insurance, 2021 CanLII 323

Aviles vs. Aviva General Insurance, 2021 ONLAT 19-010800/AABS

Citation: Aviles vs. Aviva General Insurance, 2021 ONLAT 19-010800/AABS

Released Date: 01/07/2021

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:

Shery Aviles

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

No submissions were filed

For the Respondent:

Ramandeep Pandher, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Shery Aviles (“Ms. Aviles”), was injured in an automobile accident on September 24, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva General Insurance (“Aviva”), the respondent.

2Aviva determined that all of Ms. Aviles injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² Aviva also denied Ms. Aviles’ claims for a psychological assessment, psychological treatment and an orthopaedic assessment. As a result, Ms. Aviles submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on May 13, 2020 and a written hearing was scheduled for October 15, 2020.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Are Ms. Aviles’ injuries as a result of the accident predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to treatment within the $3,500.00 limit in the MIG?

(ii) Is Ms. Aviles entitled to $3,574.20 for psychological treatment recommended by Dr. Jon Mills in a treatment plan (“OCF-18”) submitted on May 3, 2017, and denied on September 11, 2017?

(iii) Is Ms. Aviles entitled to $2,460.00 for a psychological assessment recommended by Dr. Jon Mills in an OCF-18 submitted on August 25, 2017, and denied on September 9, 2017?

(iv) Is Ms. Aviles entitled to $2,460.00 for an orthopaedic assessment recommended by Complete Rehabilitation Centre in an OCF-18 submitted on May 10, 2017 and denied on September 11, 2017?

(v) Is Ms. Aviles entitled to interest on any overdue payment of benefits?

RESULT

5I find that Ms. Aviles has not satisfied her burden of proving that her impairments require treatment beyond the MIG. I also find that Ms. Aviles is not entitled to the claimed psychological treatment, psychological assessment and orthopaedic assessment. As no benefits are owing, no interest is payable. Additionally, Aviva’s request for costs is denied.

ANALYSIS

No Submissions or Evidence Filed by Ms. Aviles

6At the May 13, 2020 case conference, the parties agreed that Ms. Aviles would file her written hearing submissions and evidence with the Tribunal on September 14, 2020 and any reply submissions on October 9, 2020.

7Neither the Tribunal nor Aviva received any submissions from Ms. Aviles prior these deadlines.³

8On September 28, 2020, the Tribunal emailed Ms. Aviles’ representative to inquire about the status of Ms. Aviles’ written hearing submissions. To date the Tribunal has not received a response to this email.

9Ms. Aviles bears the onus of proving that her injuries are not minor and also that she is entitled to the claimed psychological treatment, psychological assessment and orthopedic assessment by proving that the proposed treatment and assessments are reasonable and necessary on a balance of probabilities.⁴

10Ms. Aviles has filed no evidence or submissions for this written hearing. In response, Aviva did not file any evidence and, instead, submitted that Ms. Aviles’ application should be dismissed as abandoned.

11As there is no evidence before me to allow for an analysis to be undertaken whether Ms. Aviles’ injuries are not minor and also regarding the reasonableness and necessity of the proposed psychological treatment, psychological assessment and orthopaedic assessment, I find that Ms. Aviles has failed to prove on a balance of probabilities that her injuries require treatment beyond the MIG. I also find that Ms. Aviles is not entitled to the claimed psychological treatment, psychological assessment and orthopaedic assessment.

Interest

12As there are no benefits owing, no interest is payable.

Costs

13In its submissions, Aviva requests its costs in the amount of $5,000.00 as against Ms. Aviles given that Aviva was required to respond to Ms. Aviles’ application, attend the May 13, 2020 case conference and participate in the written hearing.

14Rule 19.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”) allows a party to make a written request for costs at a hearing or at any time before a decision is released. Therefore, Aviva’s requests for costs is properly before me.

15However, I am not granting Aviva’s requests for costs in this matter. While Aviva was required to respond to Ms. Aviles’ application and attend a case conference, these steps in and of themselves do not amount to Ms. Aviles acting unreasonably, frivolously, vexatiously or in bad faith. I also find that Ms. Aviles’ failure to file any written submissions for the hearing does not meet the high threshold of acting unreasonably, frivolously, vexatiously or in bad faith. Moreover, the only hearing submissions filed by Aviva were half a page long unaccompanied by any evidence. Preparing relatively short submissions for this written hearing does not amount to prejudice to Aviva and does not warrant $5,000.00 in costs. For all of these reasons, Aviva’s request for costs is denied.

CONCLUSION

16For the reasons outlined above, I find that:

(i) Ms. Aviles has failed to prove on a balance of probabilities that her injuries are outside of the MIG;

(ii) Ms. Aviles is not entitled to the OCF-18s for psychological treatment, psychological assessment and orthopaedic assessment.

(iii) No interest is payable;

(iv) Aviva’s request for costs is denied; and

(v) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Respondent’s Submissions, para. 2.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.