Licence Appeal Tribunal File Number: 19-005902/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:
Rita Al Aaraj
Applicant
and
Aviva General Insurance
Respondent
DECISION [AND ORDER]
VICE-CHAIR: Sandeep Johal
APPEARANCES:
For the Applicant:
Rita Al Aaraj, Applicant, did not attend
Victoria Polyakevich, Counsel, did not attend
For the Respondent:
Almeda Luca, Adjuster
Kristofer Angle, Counsel
HEARD:
By Videoconference on May 31, 2021 and written submissions
BACKGROUND
1The applicant was injured in an automobile accident on June 6, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2This matter was originally scheduled for a hearing on May 19, 2020 and was adjourned due the ongoing COVID-19 pandemic. On July 8, 2020 another case conference was scheduled which set up this current hearing with new production deadlines to exchange evidence.
3The Notice of Electronic Hearing was sent to the parties, including the applicant’s legal counsel by her preferred method of service, that being email.
4On the first day of the hearing, the hearing was scheduled to begin at 9:30 A.M. When neither the applicant nor her counsel were present, I asked the Case Management Officer (CMO) to call the applicant’s counsel’s office to remind them of the hearing, and let her know that the respondent’s counsel was present and we are waiting for the applicant and her counsel to join the hearing. The CMO left several messages over the course of the next hour and there was no response from the applicant’s counsel or their office. At 10:30 A.M., the hearing commenced, without the participation of the applicant or her counsel and no evidence was filed with the Tribunal.
5In accordance with section 7 of the Statutory Powers Procedure Act (“SPPA”) addressing the effect of non-attendance at a hearing after due notice2 the hearing proceeded.
ISSUES TO BE DECIDED
6The following are the issues to be decided:
i. Is the applicant entitled to a non-earner benefit (NEB) in the amount of $185 per week for the period from July 23, 2018 to date?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,479.08 for physiotherapy treatment recommended by Doctor Med Rehabilitation Centre in a treatment plan (OCF-18) submitted on March 19, 2018 and denied on July 20, 2018?
iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,492.48 for physiotherapy treatment recommended by Doctor Med Rehabilitation Centre in a treatment plan (OCF-18) submitted on March 12, 2018 and denied on March 20, 2018?
iv. Is the applicant entitled to the cost of an orthopaedic examination in the amount of $2,194.00 recommended by Doctor Med Rehabilitation Centre in a treatment plan (OCF-18) submitted on December 17, 2018 and denied on December 18, 2018?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent entitled to costs?
RESULT
7With no submissions or evidence tendered for the hearing, the applicant has not met her onus to prove that she is entitled to her claim for benefits, and therefore, I find that the applicant’s claim for an NEB and the treatment plans are not reasonable and necessary.
8As there are no benefits owing there is no entitlement to interest.
9The respondent is not entitled to costs.
ANALYSIS
10I find that the Tribunal provided reasonable notice in accordance with section 6 of the SPPA of the hearing. The applicant and her counsel failed to attend the hearing despite multiple attempts being made to contact the applicant’s counsel before the hearing began neither one appeared. In accordance with section 7 SPPA the hearing continued in the absence of the applicant and her counsel.
11The applicant did not file any documentary briefs for the hearing as ordered by the Tribunal in an Order dated January 2, 2020 and with the onus being on the applicant to prove entitlement to accident benefits, the applicant’s claim must fail for a lack of evidence.
12During the hearing, the respondent made a request for costs and written submissions were ordered to be provided within 7 business days in accordance with the Order dated June 1, 2021. The request for written submissions on costs, was to allow for the applicant an opportunity to be given notice of the Tribunal’s request for submissions on costs. The applicant nor her counsel provided any written submissions with respect to costs.
COSTS
13The respondent’s request for costs is dismissed for the following reasons.
14The respondent provided submissions on costs in accordance with Rule 19 of the Tribunal’s Common Rules of Practice and Procedure.3 Rule 19.1 sets out that a party may make a request for costs where it believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
15The respondent seeks costs as the applicant failed to produce her evidence in accordance with the case conference order, the applicant has failed to respond to ongoing requests for her evidence and on her intentions for the hearing, as well as, failing to attend a motion hearing despite having received proper notice. The respondent is seeking $500 in costs.
16It is my finding that an award of costs would unnecessarily punish the applicant. In my view, the lack of attendance and failure to comply with the Tribunal orders to submit evidence, or a failure to respond to correspondence with the Tribunal and the respondent, is behaviour that is attributable to the applicant’s counsel. At the time of the orders being made and at the time of the hearing, the applicant was represented by counsel.
17The applicant is unsuccessful in her claim for benefits, and I find that this is punishment enough for the applicant for her counsel’s failure to attend the hearing, and failure to provide any evidence in support of her claim for this hearing.
18As a result, I find that an award for costs against the applicant when it would appear as though the behaviour of non-compliance and a failure to reply to correspondence was done by the applicant’s counsel and not the applicant herself. To award costs against the applicant in these circumstances would unfairly punish the applicant for her counsel’s acts or lack thereof, and would prevent access to justice for applicant’s seeking accident benefits.
ORDER
19The applicant’s claim for an NEB and medical and rehabilitation benefits in dispute are dismissed.
20As there are no benefits payable, there is no interest owing.
21The respondent’s request for costs is dismissed.
Released: September 30, 2022
Sandeep Johal
Vice-Chair
Footnotes
- O. Reg. 34/10 as amended.
- Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 (“SPPA”)
- Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended.