Licence Appeal Tribunal File Number: 20-011597/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:
Thavaratnam Thayaparan
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
No submissions were filed
For the Respondent:
Rozlien Brikha, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on September 23, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)1 (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").
2The respondent determined that all of the applicant's 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. The respondent also submits that, even if the MIG is found not applicable, the applicant has not established that the proposed treatment plans are reasonable and necessary.
3A case conference was held on March 9, 2021 and a written hearing was scheduled for October 18, 2021. Pursuant to the Case Conference Report and Order dated March 10, 2021 ("Case Conference Order"), the applicant's submissions and evidence for the hearing were due August 31, 2021. The respondent's submissions and evidence for the written hearing were due September 30, 2021. The applicant did not file any submissions.
ISSUES
4The issues in dispute were identified in the Case Conference Order as follows:
a. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
b. Is the applicant entitled to $2,000.00 for chiropractic services, recommended by MacKenzie Medical Rehabilitation Centre Inc. in a treatment plan ("OCF-18") dated December 27, 2018?
c. Is the applicant entitled to $2,200.00 for occupational therapy services, recommended by Assessment Rehabilitation Treatment Centre in an OCF-18 dated June 17, 2019?
d. Is the applicant entitled to interest on any overdue payment of benefits?
5The applicant's representative subsequently wrote to the Tribunal by way of letter dated March 26, 2021 to correct the issues in dispute. The two treatment plans were identified as being:
a. $2,200.00 for an assessment of function/impairment recommended by Dr. J.A. Nathanson of Assessment Rehabilitation Treatment Centre in an OCF-18 dated June 17, 2019; and
b. $2,000.00 for a chronic pain assessment recommended by Dr. James Kim of Assessment Rehabilitation Treatment Centre in an OCF-18 dated June 17, 2019.
RESULT
6The application is dismissed. As no benefits are owing, no interest is payable. Additionally, the respondent's request for costs is denied.
ANALYSIS
No Submissions or Evidence Filed by the Applicant
7The parties agreed at the March 9, 2021 case conference that the applicant would file his written hearing submissions and evidence with the Tribunal on August 31, 2021 and any reply submissions on October 13, 2021.
8The Tribunal has not received any submissions or evidence from the applicant prior to these deadlines. The respondent submits that it similarly has not received the applicant's submissions or documentary evidence.3
9The Tribunal forwarded a Notice of the Written Hearing on August 16, 2021, and emailed the applicant's representative on August 31, 2021, September 28, 2021 and October 7, 2021 to remind the applicant to file his written submissions. To date, the Tribunal has not received a response to these emails.
10The respondent submits that the applicant has abandoned his claim and seeks an Order dismissing the application without a hearing, pursuant to Rule 3.4(d) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission's Common Rules of Practice and Procedure, October 2, 2017 (the "Rules"). The respondent also requests an Order for costs.
11As the applicant has failed to provide any written submissions and evidence for this hearing, there is no evidence to support the applicant's application. The applicant bears the onus of proving that his injuries are not minor and that the proposed treatment plans are reasonable and necessary on a balance of probabilities4.
12Given that the applicant has not adduced any evidence, I am unable to undertake the analysis of whether the applicant's injuries are minor or whether the proposed treatment plans are reasonable and necessary. Accordingly, I find that the applicant has failed to prove on a balance of probabilities that his injuries require treatment beyond the MIG. I also find that the applicant has not met his burden to prove that the disputed treatment plans are reasonable and necessary. Accordingly, the application is dismissed.
Costs
13The respondent requests costs on a full indemnity basis in the amount of $8,000.00, submitting that the applicant has acted unreasonably, frivolously, vexatiously or in bad faith by bringing forth the application, failing to comply with the adjudicator's Order and not filing his submissions and evidence5.
14Rule 19.2 of the Rules permits a party to make a written request for costs at a hearing or at any time before a decision is released.
15I decline to award costs to the respondent. Simply bringing forth an application does not amount to the applicant acting unreasonably, frivolously, vexatiously, or in bad faith. Although I agree with the respondent that the applicant failed to comply with the case conference adjudicator's Order and did not file his submissions and evidence, I am not satisfied that this failure to file submissions and evidence has risen to the high threshold set out in Rule 19 of the Rules. As such, the respondent's request for costs is denied.
Interest
16Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.
17As no benefits are overdue, no interest is payable under s.51.
ORDER
18The applicant has failed to adduce any evidence in this matter; thus he is unable to prove his case on a balance of probabilities standard. As a result, the application is dismissed. As no benefits are payable, no interest is payable. No costs are awarded to the respondent.
Released: August 8, 2022
Ulana Pahuta
Adjudicator
Footnotes
- O. Reg. 34/10
- Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s.268.3(1.1) of the Insurance Act.
- Respondent's Submissions, pg. 4 para 6.
- Scarlett v. Belair Insurance, 2015 OBSC 3635 at paras 20-24
- Respondent's Submissions, pg.9 para 40