Citation: Nairn v. Wawanesa Insurance, 2023 ONLAT 21-014988/AABS

Licence Appeal Tribunal File Number: 21-014988/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:

Corey Nairn

Applicant

and

Wawanesa Insurance

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

No Submissions Filed

For the Respondent:

Ken Yip, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Corey Nairn (the “applicant”) was involved in an automobile accident on September 3, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Wawanesa Insurance (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:

1. 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 Minor Injury Guideline (“MIG”) limit?

2. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from September 13, 2020 to date and ongoing?

3. Is the applicant entitled to $3,195.84 for chiropractic services, proposed by Mediwise Health Care Center in a treatment plan/OCF-18 (“plan”) submitted January 18, 2021 and denied January 29, 2021?

4. Is the applicant entitled to $1,920.53 for a psychological assessment, proposed by Mediwise Health Care Center in a plan submitted January 18, 2021 and denied January 29, 2021?

5. Is the applicant entitled to $3,963.64 for psychological services, proposed by Mediwise Health Care Center in a plan submitted March 15, 2021 and denied March 26, 2021?

6. 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 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 24, 2022. This resulted in a Case Conference Report and Order (“CCRO”) released on December 6, 2022 that set this matter down for a written hearing. This CCRO also established production deadlines based on the date of the case conference, and further deadlines 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.

8The applicant’s legal firm notified the Tribunal on July 24, 2023 that it was no longer representing the applicant in this matter. At the request of the Tribunal on the same day, the former representative provided the current phone number and email address of the applicant. Also on that same day, the Tribunal sent correspondence to the applicant requesting that he contact the Tribunal if he wished to continue with this application. This email noted that a written hearing was still scheduled to proceed on August 25, 2023.

9Also on July 24, 2023, counsel for the respondent emailed both the Tribunal and the applicant to advise that it did not oppose receiving the applicant’s written submissions and evidence by August 8, 2023, as long as the deadline for its own written submissions and evidence as established in the CCRO and NoWH was “pushed back accordingly.”

10Tribunal records do not include any notice of a reply from the applicant, to either the correspondence from the Tribunal about the withdrawal of his legal representative or to the correspondence from the respondent’s counsel offering an extension to hearing submission deadlines.

11As the applicant attended the case conference, and as the Tribunal was provided with the applicant’s contact information by his former legal representative, I am satisfied that he 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.

12There 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, he had an obligation under Rule 4.4 of this Tribunal’s Common Rules to notify the Tribunal with the correct address.

13In addition, and for the above reasons, I concur with the respondent’s argument as submitted in a Notice of Motion (“NoM”) dated August 14, 2023 (scheduled by the Tribunal to be heard at this hearing) that this matter proceed to a hearing without the submissions and evidence of the applicant.

14As a result, I may proceed with this written hearing pursuant to s. 7(2) of the *SPPA*.

The Applicant has not Met His Burden

15I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Accordingly, he has failed to meet his burden to demonstrate entitlement to the benefits claimed.

16As is held in Scarlett v. Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate that he is entitled to any claimed benefits.

17The applicant failed to meet this onus as he did not file written submissions or evidence with the Tribunal in accordance with the timeline established by the CCRO and the NoWH as noted above. Nor did he file submissions or evidence in the subsequent nearly three months since the hearing date of August 25, 2023, respond to the Tribunal’s query about representation, or contact the Tribunal with a request for an extension of the submission deadlines.

18The 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, referenced the NoM noted above, and also included an argument and evidence on the substantive issues in dispute.

19Given the applicant’s failure to provide submissions or evidence, it is clear that he has not met his evidentiary burden. This application shall be dismissed.

ORDER

20As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden to establish entitlement to the benefits in dispute.

21The application is dismissed.