Licence Appeal Tribunal File Number: 21-000587/AABS
In the matters of Applications pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Destiny Homanchuk
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jeffrey Shapiro, Vice-Chair
APPEARANCES:
For the Applicant: Destiny Homanchuk, Self-Represented (Did not appear)
For the Respondent: Matthew Wasserman, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant ("D.H.") appears to have been in an automobile accident on December 27, 2018. She sought and received insurance benefits from the respondent ("TD") pursuant to the Schedule,1 but when her request for further treatment was denied, she appealed to this Tribunal. The matter is now before me to determine her entitlement to that treatment. Alternately, TD has requested that the application should be dismissed as abandoned. After considering D.H.'s lack of submissions, and the procedural history, I find that D.H. has abandoned her application, and also, has not proven her entitlement to the benefit at issue.
ISSUES
2The issues to be decided in this hearing are:
- Should this matter be dismissed as abandoned?
- If not, is D.H. entitled to $1,796.00 for occupational therapy services, proposed by Karen Force, in a treatment plan/OCF-18 ("plan"), submitted on March 3, 2020, denied on April 7, 2020? 2
- Is D.H. entitled to interest on any overdue payment of benefits?
RESULT
3D.H. has abandoned her claim and thus it should be dismissed. Alternately, D.H. had not proven her entitlement to the occupational therapy services and is not entitled to interest. The application is dismissed.
ANALYSIS
4Previously, TD requested the Tribunal's preliminary ruling that D.H. is barred by sections s. 52 and 53 of the Schedule from claiming benefits and must pay back benefits. As a result of that request, I issued a preliminary issue decision, setting forth an overview of the related applications to this accident, the factual history, and the relevant procedural – including D.H.'s non-participation.3 While I did not grant TD's preliminary issue request, I ruled that the hearing on the substantive issues (those listed above) proceed as scheduled, stating as follows:
[28] The Tribunal's June 30, 2021 Case Conference Order (released August 30, 2021) ordered that the substantive issues (paragraph 14 of that Order), be addressed by a written hearing on April 29, 2022, with D.H.'s submissions for that hearing to be filed by April 1, 2022. Given that the Tribunal has not received any request from D.H. to alter that schedule, I see no good reason to alter it, and thus, I order that the schedule in that Order remains in effect – i.e., D.H. submissions are due April 1, 2022. If such submissions are not filed, TD may notify the Tribunal that D.H. did not file submissions, and the Tribunal may consider the application abandoned. I remain seized of this matter. (Emphasis in the original)
5There is little doubt that D.H. is aware of the written hearing and also my intention to dismiss the matter as abandoned. D.H. was present at the June 30, 2021 case conference when this hearing was set. While the preliminary issue hearing was rescheduled, the written hearing was not. D.H. was also provided a copy of my March 30, 2022 decision and the April 7, 2022 amended version. Both mention the April 29, 2022 written hearing and that her submissions were due April 1, 2022. The preliminary issue decision set-forth the many attempts that both the Tribunal and TD have made to D.H. to inform her of various events and deadlines. D.H. has not participated in this matter since her counsel withdrew in September 2021, including filing any submissions on the merits of her claim, seeking an extension, or arguing why the matter should not be dismissed.
6Accordingly, I am satisfied that D.H. has abandoned her application. Alternately, given that the timeline for D.H. to provide her submissions for the written hearing passed on April 1, 2022, I also find that D.H. failed to support her claim, and thus I find against her on the merits of her application.4
ORDER
7As D.H. failed to prove entitlement to the treatment plan and is not entitled to interest, and alternately, has abandoned her claim, the application is dismissed.
Released: September 9, 2022
Jeffrey Shapiro, Vice-Chair
Footnotes
- Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 as amended.
- The June 30, 2021 case conference order, at para. [14]2, incorrectly lists TD's repayment claim for $29,346.78 as D.H.'s claim. The issue was addressed in the prior preliminary issue hearing.
- Homanchuk v TD Gen. Ins. Co., 2022 CanLII 27244 (ON LAT) (originally issued March 30, 2022 and then amended April 7 2022 to correct that D.H. started the application.)
- I note that while the wording of s. 52 and 53 did not give me authority to bar her claim or repay benefits as TD requested in the preliminary hearing, TD did establish that D.H. willfully misrepresented facts about an alleged passenger's claims which effects D.H.'s credibility.