Citation: Sultan v. Allstate Canada, 2023 ONLAT 21-011608/AABS

Licence Appeal Tribunal File Number: 21-011608/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:

Abdul Sultan

Applicant

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Abdul Sultan (Self-represented), Did not attend

For the Respondent: Colleen Mackeigan, Counsel

HEARD: In Writing

OVERVIEW

1Abdul Sultan, the applicant, was involved in an automobile accident on March 31, 2018, 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, Allstate Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

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 of $185.00 per week from March 28, 2018 to March 28, 2020?

iii. Is the applicant entitled to $2,257.74 for a Chronic Pain Assessment proposed by Dr. Igor Wilderman in a treatment plan/OCF-18 (“plan”) dated September 11, 2020?

i. Is the applicant entitled to $2,486 for a Psychological Assessment proposed by Dr. Fahimeh Aghamohseni in a plan dated September 1, 2020?

ii. Is the applicant entitled to $1,448 for chiropractic services proposed by George Lincy of Centenary Physio in a plan submitted to the respondent on April 23, 2019?

iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The application is dismissed. As the applicant has made no submissions for this hearing, I find that he has not met his evidentiary burden with regard to the MIG determination, nor has he established entitlement to the issues in dispute.

ANALYSIS

Procedural Background

4Both parties and their legal representatives attended a case conference on July 25, 2022.

5On August 10, 2022, the Tribunal sent both legal representatives the case conference report and order (“CCRO”), notifying them of the agreed upon deadlines for making written submissions prior to the written hearing. The Tribunal did not directly send the applicant a copy.

6The written hearing was scheduled for April 21, 2023. The Tribunal sent both legal representatives the Notice of Written Hearing on August 19, 2022. The Tribunal did not directly send the applicant a copy.

7On April 5, 2023, the applicant’s daughter, Ms. Sultan, advised the Tribunal that her father’s legal representative was not responding to inquiries. The Tribunal staff also attempted to reach the applicant’s legal representative, twice by phone and once by email. There was no response.

8On April 6, 2023, the Tribunal staff advised Ms. Sultan, that they had been unable to contact her father’s legal representative. The deadline for the applicant’s written hearing submissions (March 22, 2023) had already passed by this time.

9Ms. Sultan contacted the Tribunal on her father’s behalf numerous times between April 6, 2023, and August 2023, seeking information and assistance. On August 10, 2023, Ms. Sultan advised the Tribunal and the respondent via correspondence, that her father, the applicant, would continue as a self-represented party.

10On September 25, 2023, the Tribunal made an order to extend the timeline for written submissions in relation to the written hearing, to address the unique circumstances outlined above. The order was sent to Ms. Sultan, the respondent, and the respondent’s counsel. The extension was offered to allow both parties the opportunity to file submissions and to fully participate in the matter. The extended timeline for submissions was as follows:

i. Applicant’s submissions and evidence due October 25, 2023;

ii. Respondent’s submissions and evidence due November 8, 2023; and

iii. Applicant’s reply submissions and evidence due November 15, 2023.

The applicant made no submissions by October 25, 2023. The respondent filed submissions on November 8, 2023. The applicant did not file any reply submissions.

The Tribunal has met its reasonable notice obligations.

11Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.

12I find that the Tribunal met its reasonable notice obligations required by ss. 6(1) and 6(4) of the SPPA for the following reasons:

i. The notice was sent to the applicant’s legal representative on August 19, 2022.

ii. The applicant did not request a change of format from a written hearing under s. 6(4)(b) of the SPPA.

iii. The Tribunal issued an interim order to extend the timelines for submissions to address the fact that the applicant had not personally received a copy of the notice directly from the Tribunal on August 19, 2022. The order provided for an additional month to prepare and file submissions.

13The Tribunal clearly made the applicant aware of his obligations for the written hearing thereby meeting the reasonable notice requirements of ss. 6(1) and 6(4) of the SPPA. An additional and extraordinary step was taken to allow the applicant an extra month of time to prepare submissions given his change in status to a self-represented party late in the process.

14Despite the extra time, the applicant failed to provide submissions. The evidentiary burden lies with the applicant to demonstrate entitlement to removal from the MIG and any claimed benefits, and he has not done so. The respondent filed submissions, taking the position that the application should be dismissed, either because the applicant has abandoned the proceeding, or, in the alternative, that the applicant has not discharged his burden of proof.

15I find that the applicant has failed to meet his burden. Ample time has passed since he first notified the Tribunal of the issues with his legal representative. Despite being offered an additional month to prepare submissions as a self-represented party, the applicant failed to file anything by the October 25, 2023 deadline.

16Given the applicant’s failure to provide submissions, it is clear that he has not met his evidentiary burden with regard to the issues in dispute.

17Accordingly, this application shall be dismissed.

The applicant has not proven entitlement to benefits.

18The written hearing was scheduled for April 21, 2023.

19On September 25, 2023, the Tribunal made an order extending the timeline for written submissions.

20No submissions were received from the applicant by the deadlines.

21The applicant had the opportunity to file written submissions and evidence in support of his application and did not do so.

22As a result, the applicant has failed to prove that he is entitled to the benefits claimed and a determination as to whether his injuries fall within the MIG cannot be made. It follows that he is not entitled to interest or an award.

ORDER

23The Applicant has failed to demonstrate that he is entitled to the benefits claimed. He is not entitled to interest or an award.

24The application is dismissed.