Citation: Wubah v. Belair, 2023 ONLAT 21-008626/AABS

Licence Appeal Tribunal File Number: 21-008626/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:

Georgina Wubah

Applicant

and

Belair

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

No Submissions Filed

For the Respondent:

Jonathan H. Beiles, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Georgina Wubah (the “applicant”) was involved in an automobile accident on November 20, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Belair Insurance Company (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. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 7, 2018 to date and ongoing?

2. Is the applicant entitled to $2,204.92 for psychological treatment proposed by Dr. Kershner in a treatment plan/OCF-18 (“plan”) submitted February 6, 2019?

3. Is the applicant entitled to $2,260.00 for a neurological assessment proposed by Dr. Robertus in a plan submitted February 6, 2019?

4. 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 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 December 5, 2022. This resulted in a Case Conference Report and Order (“CCRO”) released February 3, 2023 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 March 9, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the hearing date for August 4, 2023. This notice 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.

8When the applicant did not file submissions and evidence as of July 5, 2023 in accordance with the CCRO and the NoWH, the respondent filed a Notice of Motion (“NoM”) with the Tribunal on July 18, 2023 requesting that the application be dismissed as abandoned. Both parties called in for a teleconference NoM hearing on July 28, 2023. The applicant’s counsel explained that the application had not been abandoned and that submissions would be filed by August 4, 2023.

9The respondent’s request for dismissal was denied by Tribunal Motion Order dated August 11, 2023. This motion order noted that the hearing would continue according to the provisions of the CCRO. However, both parties were essentially granted de facto extensions to their submissions by this order, as the applicant had already missed the deadlines established by the CCRO and NoWH.

10Also, the Tribunal sent a reminder to both parties on July 31, 2023 that submissions had not been received by either party for the written hearing.

11As the applicant and/or her representative attended the case conference and the motion hearing, and as there is no indication of any difficulties encountered by the Tribunal in contacting the applicant and/or her representative, I am satisfied that she received reasonable 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.

12As a result, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.

The Applicant has not Met Her Burden

13I find that the applicant had every 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.

14As 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.

15The applicant failed to meet this onus as she did not file written submissions or evidence with the Tribunal in accordance with the CCRO dated February 3, 2023 and the hearing date set for August 4, 2023. She also failed to file submissions by August 4, 2023, despite the comments of her representative at the motion hearing held on July 28, 2023. Nor did she file submissions in the subsequent three months since that motion order hearing, or contact the Tribunal with a request for an extension of the submission deadlines.

16The respondent filed its submissions and evidence on August 14, 2023. These were also approximately a month late according to the deadlines set by the CCRO, but in accordance with the Tribunal motion order dated August 11, 2023, which allowed the hearing to go forward given the applicant’s counsel’s comments that submissions would be submitted by August 4, 2023.

17Given 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

18As 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.

19The application is dismissed.