Licence Appeal Tribunal File Number: 21-015588/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:
Bria Dushame Williams
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Christina Chiu, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Bria Dushame Williams (the “applicant”) was involved in an automobile accident on April 29, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Canada (the “respondent”) denied a claim for certain benefits. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to $2,990.62 for chiropractic services proposed by Active Life Wellness Centre Inc. in a treatment plan/OCF-21 (“plan”) submitted November 18, 2021 and denied November 29, 2021?
Is the applicant entitled to $2,260.00 for the cost of a chronic pain assessment proposed by All Health Medical Centre in a treatment plan/OCF-21 (“plan”) submitted June 12, 2020, and denied September 22, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The application is dismissed. As the applicant has made no submissions for this hearing, I find that she has not met her evidentiary burden with regard to the benefits in dispute.
ANALYSIS
Proceeding in the Absence of One of the Parties
4I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.
5Proceeding 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.
6Both parties participated in a case conference that was held on October 21, 2022. This resulted in a Case Conference Report and Order (“CCRO”) released on December 5, 2022 that set this matter down for a written hearing and established deadlines for productions based on the date of the case conference, and for submissions and evidence anchored on the forthcoming date for the hearing to be scheduled by the Tribunal.
7On December 29, 2022, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the hearing date for August 25, 2023. As a result of the NoWH, the applicant’s written submissions were due 30 days prior to the hearing date, on July 26, 2023, and the respondent’s written submissions and evidence were due 14 days before the hearing date, on August 11, 2023. The NoWH also included the provisions that the hearing adjudicator may not consider documents filed after deadlines ordered by the Tribunal, and that the Tribunal may make a decision without the participation of one or both parties if submissions are not filed.
8As the applicant attended the case conference, and as there is no indication of any difficulties encountered by the Tribunal in contacting the applicant and/or her legal representative, I am satisfied that she received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
9There is no evidence that the applicant’s address changed or was otherwise incorrect in Tribunal records. If the applicant’s address differed from what was originally provided to the Tribunal, she had an obligation under Rule 4.4 of this Tribunal’s Common Rules to notify the Tribunal with the correct address.
10As a result, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant has not Met Her Burden
11I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Accordingly, she has failed to meet her burden to demonstrate entitlement to the benefits claimed.
12As is held in Scarlett v. Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate that she is entitled to any claimed benefits.
13The applicant failed to meet this onus as she did not file written submissions or evidence with the Tribunal in accordance with the CCRO and the NoWH and the timeline noted above. Nor did she file submissions or evidence in the subsequent nearly three months since the hearing date of August 25, 2023, or contact the Tribunal with a request for an extension of the submission deadlines.
14The respondent filed its submissions and evidence on August 11, 2023 in accordance with the timeline established in the CCRO and NoWH. In these submissions, it noted the applicant’s failure to provide submissions or evidence for the written hearing. The respondent argued that the applicant cannot meet her burden of proof in the absence of providing any submissions and requested that the application be dismissed as “effectively abandoned.”
15Given the applicant’s failure to provide submissions or evidence, it is clear that she has not met her evidentiary burden. This application shall be dismissed.
ORDER
16As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden to establish entitlement to the benefits in dispute.
17The application is dismissed.
Released: December 11, 2023
Brett Todd
Vice-Chair