Citation: Malhotra v. Travelers Canada, 2023 ONLAT 21-005010/AABS

Licence Appeal Tribunal File Number: 21-005010/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:

Veena Malhotra

Applicant

and

Travelers Canada

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

No Submissions Filed

For the Respondent:

Tom S. Yen, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Veena Malhotra (the “applicant”) was involved in an automobile accident on May 12, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Travelers 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:

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 $1,995.00 for a psychological assessment, proposed by Svetlana Gabidulina in a treatment plan/OCF-18 dated July 21, 2020?

3. Is the applicant entitled to $2,029.49 for an attendant care assessment, proposed by Doreen Payan, Q Medical, in a treatment plan/OCF-18 dated June 11, 2020?

4. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

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 issues in dispute.

ANALYSIS

Proceeding in the Absence of a Party

4I find that the Tribunal has met its notice obligations and therefore 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.

6The self-represented applicant participated in a case conference on December 2, 2022. This resulted in a Case Conference Report and Order (“CCRO”) released on January 31, 2023 that set this matter down for a written hearing.

7On March 9, 2023, a Notice of Written Hearing (“NoWH”) setting the hearing date of August 4, 2023 was emailed by the Tribunal to both parties. On March 10, 2023, this notice was mailed to the applicant’s address. As a result, the applicant’s submissions were due 30 days prior to the hearing date, on July 5, 2023, and the respondent’s submissions were due 14 days before the hearing date, on July 21, 2023. The NoWH 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 they do not provide submissions.

8There 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.

9For the above reasons, I find that the applicant received reasonable notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that the applicant did not request a change of format from a written hearing under s. 6(4)(b) of the SPPA. I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.

The Applicant has not Met Her Burden

10I 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.

11As 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.

12The applicant failed to meet this onus as she did not file written submissions or evidence with the Tribunal in accordance with the deadlines as established in both the CCRO and the NoWH. Nor has she made any submissions in the subsequent three months since the hearing date. Further, she made no request to the Tribunal to extend deadlines to file submissions and evidence.

13The respondent filed its submissions for the hearing on July 20, 2023, in accordance with the timeline set in the CCRO and the NoWH. It requested that this matter be dismissed, as the applicant has provided no submissions or evidence and therefore she cannot not meet her burden demonstrating removal from the MIG, nor entitlement to the benefits in dispute.

14Given the applicant’s failure to provide submissions, it is clear that she has not met her evidentiary burden. This application shall be dismissed.

ORDER

15As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden regarding the MIG determination, nor the benefits in dispute.

16The application is dismissed.