Gonzalez v. Unifund Assurance Company, 2022 CanLII 23401

Citation: Gonzalez v. Unifund Assurance Company, 2022 ONLAT 20-007725/AABS

Licence Appeal Tribunal File Number: 20-007725/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:

Silvia Gonzalez

Applicant

and

Unifund Assurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Silvia Gonzalez, Applicant (No Submissions)

For the Respondent: Derek Greenside, Counsel

HEARD: By way of written submissions

BACKGROUND

1This proceeding under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) arises out of a motor vehicle accident on September 20, 2015.

2A written hearing was scheduled for September 2021. The records indicate that an adjournment request was made by the applicant, on or about February 15, 2022. However, despite the request for an adjournment (it appears the request was made in order to allow the applicant more time to file her written submissions), no applicant submissions have been received by the deadline set out in the February 12, 2021 Tribunal Order.

3On March 4, 2022, the respondent contacted the Tribunal to inquire as to whether a decision would be rendered without any submissions from the applicant. The applicant was provided an opportunity to refile her adjournment request, with a deadline of March 14, 2022.

4On March 15, 2022, it was confirmed that the deadline for the adjournment passed, and neither of the Tribunal or the respondent received any evidence to support the applicant’s request for the adjournment or an indication that submissions would be filed. The respondent again followed up with a request for dismissal as no correspondence or submissions have been received from the applicant since the initial email from February 15, 2022.

PRELIMINARY ISSUE

5The preliminary issue to be determined is whether the substantive issues in dispute ought to be dismissed on the basis the applicant has abandoned her application to the Tribunal?

SUBSTANTIVE ISSUES

6Is the medical benefit in the amount of $2,917.85 for physical rehabilitation recommended by Focus Physiotherapy in a treatment plan (OCF-18) submitted on October 2, 2018, denied on December 10, 2018, reasonable and necessary?

7Is the medical benefit in the amount of $5,500.00 for a psychiatric assessment recommended by Focus Physiotherapy in an OCF-18 submitted on September 4, 2019, denied on October 9, 2019, reasonable and necessary?

8Is the medical benefit in the amount of $2,248.00 for physical rehabilitation recommended by Focus Physiotherapy in an OCF-18 submitted on June 19, 2019, denied on June 28, 2019, reasonable and necessary?

9Is the applicant entitled to interest on any overdue payment of benefits?

FINDING

10The applicant’s application is dismissed as abandoned.

APPEAL DISMISSED AS ABANDONED

11Pursuant to Tribunal Rule 3.4¹, the Tribunal may dismiss an application without a hearing if the applicant is found to have abandoned the proceeding. Before doing so, pursuant to Tribunal Rule 3.5, the Tribunal is required to give the parties notice of its intention to dismiss the appeal, the reasons for the Tribunal’s intention to dismiss, to inform the parties of the right to make written submissions, and consider any written submissions provided.

12Despite being provided an extension to re-file her request for an adjournment, the applicant did not re-file the request. No explanation for not re-filing the adjournment request was given, and no submissions regarding the subject proceeding were filed. Where it is the applicant’s burden to demonstrate entitlement to the benefits claimed, her failure to provide submissions or evidence is fatal to her claim.

13The applicant was provided with several opportunities to provide both the Tribunal and the respondent with an explanation for her failure to re-file her adjournment request and/or file her submissions. There is no indication that the applicant failed to receive the notices, as prior email correspondence has been acknowledged as received and responded to.

14As such, I find that the applicant was provided with proper notice and having failed to re-file her adjournment request and/or submissions addressing her intention or her position on the substantive issues, I find that she has abandoned her claim.

15Having found that the applicant has abandoned her claim, her application is dismissed.

ORDER

16The applicant’s appeal is dismissed.

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Tribunal Rules”)