Licence Appeal Tribunal File Number: 19-006798/AABS
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:
Warfa Mohamed
Applicant
and
Aviva Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Andrew Suboch, Counsel
For the Respondent:
Aimee Draper, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on December 24, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule –Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES IN DISPUTE
2The issues in dispute in this hearing are:
i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (the “MIG”)?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,565.00 for physiotherapy recommended by Knead Wellness in a treatment plan submitted April 4, 2018?
iii. Is the applicant entitled to receive a medical benefit in the amount of $2,510.00 for physiotherapy recommended by Knead Wellness in a treatment plan submitted July 31, 2018?
iv. Is the applicant entitled to payment for the cost of examinations in the amount of $1,900.00 for a chronic pain assessment, recommended by Community Health & Counselling Services Inc. in a treatment plan submitted May 9, 2019?
v. Is the applicant entitled to payment for the cost of examinations in the amount of $2,200.00 for a psychological assessment, recommended by Community Health & Counselling Services Inc. in a treatment plan submitted May 8, 2019?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3As the applicant did not provide any submissions or evidence for the written hearing by the deadlines established by the Tribunal, the applicant has failed to meet his burden of proving that his injuries are not minor, or that the benefits in dispute are reasonable and necessary.
4It is also clear from the applicant’s failure to provide any submissions that he has abandoned his application pursuant to Rule 3.4(d) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended. The application is dismissed.
BACKGROUND
5The applicant was involved in an accident on December 24, 2017 on Highway 401 near Martin Grove Road in Mississauga. The applicant submitted an appeal to the Tribunal on June 24, 2019 disputing the insurer’s designation that his injuries were subject to the MIG, along with making claims for non-earner and medical benefits.
6A case conference took place on November 27, 2019 before Adjudicator Braun. The resulting Case Conference Report and Order scheduled an in-person hearing in Toronto for July 13-16, 2020.
7As a result of the Covid-19 pandemic, the in-person hearing was cancelled by the Tribunal in correspondence dated April 20, 2020. A second case conference was scheduled for September 24, 2020. At that proceeding, Adjudicator Wallace ordered a videoconference hearing for August 23-25, 2021.
8The applicant subsequently withdrew a claim for non-earner benefits and filed a Notice of Motion with the Tribunal on August 12, 2021 requesting that the videoconference hearing be converted to a written hearing. The respondent consented. In his Order dated August 18, 2021, Vice-Chair Hunter scheduled a written hearing on December 13, 2021, with applicant submissions and evidence due by November 8, 2021, respondent submissions and evidence due by November 22, 2021, and reply submissions and evidence (if any) due by December 8, 2021.
9The applicant did not deliver its submissions and evidence by the November 8, 2021 submission deadline. A member of the applicant’s counsel’s law firm submitted correspondence to the respondent on November 24, 2021 apologizing for the delay and noting that submissions would be forthcoming, and also serving a number of production orders on counsel for the respondent.1
10The respondent notified the applicant’s counsel and the Tribunal on November 25, 2021 that it would not accept these production requests as the deadline to serve such productions had lapsed.2
11The respondent sent three sets of correspondence dated December 15, 2021, January 25, 2022, and June 6, 2022 to the applicant and the Tribunal indicating that the applicant’s submissions had not been received.3 The respondent also requested a motion hearing to oppose the late filing of the applicant’s submissions, but informally only via email.
12On November 10, 2022, the respondent filed a formal notice of motion and submissions with the Tribunal requesting that the application be dismissed as abandoned pursuant to Rule 3.4(d).
ANALYSIS
The Substantive Merits
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