Licence Appeal Tribunal File Number: 21-002318/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:
Carab Cabdi
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Carab Cabdi, Applicant Andrew P Suboch, Counsel
For the Respondent: Economical Insurance Company Kevin So, Counsel
HEARD: By way of written submissions
OVERVIEW
1Carab Cabdi, the applicant, was involved in an automobile accident on November 27, 2019, 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 benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The issues in dispute are:
i. 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 Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period from November 27, 2019, to date to the two-year mark?
iii. Is the applicant entitled to the following medical benefits for chiropractic services:
(a) $200.00, submitted on February 10, 2020, and denied February 14, 2020?
(b) $1,353.72, submitted on March 16, 2020, denied March 16, 2020?
(c) $1,128.10, submitted on July 17, 2020, denied July 27, 2020?
(d) $1,553.72 denied November 17, 2020?
(e) $1,328.10, submitted on January 25, 2021, denied January 27, 2021?
iv. Is the applicant entitled to a medical benefit in the amount of $2,300.00 for a chronic pain assessment, dated and denied on December 9, 2020?
v. Is the applicant entitled to a medical benefit in the amount of $2,279.22 for a mental health assessment, dated and denied on December 9, 2020?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. The applicant has not met his evidentiary burden to establish his entitlement to the benefits in dispute. Given there are no benefits payable, he is not entitled to applicable interest.
ANALYSIS
4The onus is on the applicant to demonstrate that he is entitled to the benefits claimed.
5This matter was previously scheduled to be heard by video conference; however, the applicant brought a motion to convert the videoconference hearing into a written hearing, with the consent of the respondent. The Tribunal ordered on September 6, 2022 that the matter would be decided in a written hearing format, with the applicant required to file his submissions and evidence on or before March 29, 2023, being 30 days prior to the hearing date, which was scheduled for April 28, 2023.
6He did not file any submissions, though he did file an evidence brief on April 13, 2023, missing the March 29 filing deadline. The applicant did not provide any explanation for his breach or requested the Tribunal’s consent for the late filing. I note that Rule 9.4 of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) states that when a party fails to comply with orders respecting disclosure or inspection of documents and evidence, it may not rely on the late evidence without the consent of the Tribunal.
7As a result of the applicant failing to serve and file submissions in conformity with the Tribunal order, the respondent filed a motion on April 10, 2023, seeking a notice of intention to dismiss the application.
8The respondent submits that I should dismiss the application in its entirety since the applicant’s late-filed document brief contains no submissions and it is the applicant’s onus to demonstrate entitlement. The respondent submits that the applicant has failed to establish why he is entitled to the benefits in dispute. The respondent submits that in the event that the Tribunal accepts the late filing of the applicant’s materials, the Tribunal would be condoning conduct which violates procedural fairness and contravenes the Common Rules.
9I agree with the respondent’s submissions. The applicant has not requested consent to file the document brief late, nor provided any submissions to address the breach of Rule 9.4, nor made submissions addressing his onus to demonstrate entitlement to the benefits claimed. I am not permitted to step into the role of an advocate or investigator on behalf of the applicant in my role as an adjudicator.
10Therefore, I find that the applicant has failed to meet his onus and I dismiss the application.
ORDER
11The applicant has not met his burden to establish his entitlement to the benefits in dispute.
12Given there are no benefits payable, the applicant is not entitled to interest.
13The application is dismissed.
Released: November 3, 2023
Janet Rowsell
Adjudicator