Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-002021/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:
George Draganov
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Jessica N. Telfer, Counsel
HEARD:
By way of written submissions
OVERVIEW
1George Draganov (the "applicant") was involved in an automobile accident on February 1, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Certas Home and Auto 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:
Is the applicant entitled to a medical benefit in the amount of $7,359.68 for assistive devices recommended by Elite Medicare Inc. in a treatment and assessment plan/OCF-18 submitted on March 18, 2020 and denied by the respondent on March 24, 2020?
Is the applicant entitled to a cost of examination expense in the amount of $2,200.00 for a TMJ assessment recommended by Elite Medicare Inc. in a treatment and assessment plan/OCF-18 submitted on January 21, 2021 and denied by the respondent on February 1, 2021?
Is the applicant entitled to a cost of examination expense in the amount of $17,957.00 for multidisciplinary catastrophic assessments recommended by Deena Rogozinsky Therapy submitted on a treatment plan/OCF-18 on July 6, 2021 and denied by the respondent on July 15, 2021?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed as abandoned.
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.
6This matter involves a lengthy procedural history, with numerous adjournments due to the passing of the applicant in late 2022.
7Both parties participated a case conference that was held on February 4, 2022. This was the resumption of a case conference that was adjourned on August 10, 2021 when the applicant could not attend. The resumed case conference resulted in a Case Conference Report and Order ("CCRO") dated February 9, 2022 that set this matter down for a written hearing with the issues in dispute as listed above.
8The CCRO also established a timeline for hearing submissions and evidence. The applicant was to serve his written submissions and evidence by November 4, 2022. The respondent was to file its submissions and evidence by November 18, 2022. The applicant's reply submissions were due by November 25, 2022.
9On October 20, 2022, the Tribunal sent a Notice of Written Hearing ("NoWH") to both parties that set the written hearing date for November 30, 2022.
10The applicant did not file his submissions and evidence to meet the timeline noted above. On November 17, 2022, the respondent filed a notice of motion ("NoM") requesting that the application be dismissed as abandoned, given the absence of the applicant's submissions. At the motion hearing on November 30, 2022, the applicant's counsel advised the Tribunal that the applicant had recently passed away. The Tribunal adjourned the motion hearing to provide the parties with more time to determine how to proceed.
11A second motion hearing was held on February 24, 2023. The applicant's surviving spouse attended with applicant's counsel, who had previously filed written submissions opposing the dismissal of this application and explaining that steps were being taken to attend to the applicant's estate. Both parties agreed to an adjournment of the written hearing to allow the applicant's counsel added time to address the impact that the applicant's passing had on this application.
12On March 8, 2023, the Tribunal sent a second NoWH to the parties setting a new written hearing date of May 5, 2023. On April 4, 2023, the applicant's counsel filed an NoM with the Tribunal requesting the adjournment of this application until an estate trustee had been appointed who would be able to provide instructions regarding this matter. The applicant's counsel also requested the scheduling of a case conference for case management purposes. The respondent consented.
13The Tribunal granted the adjournment request in an order dated April 6, 2023, but denied the request for a case conference. As a result, a third NoWH was sent to the parties dated April 11, 2023. This NoWH set the written hearing date for August 4, 2023.
14All of the NoWH correspondence included provisions that the hearing adjudicator may not consider documents filed after Tribunal deadlines, and that the Tribunal may make a decision without the participation of one or both parties if submissions are not filed.
15On July 4, 2023, the applicant's counsel advised the Tribunal and the respondent that it no longer represented the applicant in this application.
16The respondent filed an NoM on July 6, 2023 once more requesting that this matter be dismissed as abandoned. As the result of an NoM hearing held on July 28, 2023 in the absence of any representation on behalf of the applicant, the Tribunal issued an order putting the applicant's estate on notice of an intent to dismiss this application as abandoned without a hearing. Parties were provided the right to make submissions on the dismissal no later than August 3, 2023. No submissions were filed on behalf of the applicant.
17Given the lengthy procedural history of this application detailed above—that included legal representation as late as July 2023 and multiple adjournments to allow for the appointment of an estate trustee—I am satisfied that notice for this hearing was provided 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.
18For the above reasons, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The application is dismissed as abandoned
19I find that the application shall be dismissed as abandoned.
20Although I appreciate the difficult circumstances surrounding the passing of the applicant and offer my sincerest condolences to his surviving partner, continued adjournment requests impact on the Tribunal's mandate to ensure the timely resolution of proceedings as established by Rule 3.1(b) of the Tribunal's Common Rules of Practice & Procedure. As of the date of this writing, this application is 1,034 days old.
21Further, the Tribunal did provide some nine months of adjournments and adjustments to accommodate the applicant's estate planning in the wake of his passing. Again, while I am deeply sorry that the applicant has passed away, this is an aged file now nearly three years old. With the withdrawal of the applicant's counsel, there is no indication that the issues regarding the applicant's estate are being resolved in such a way that this hearing could move forward in a timely fashion, or at all.
22Also, the Tribunal order of July 28, 2023 clearly noted that the application was to be dismissed if submissions were not received by August 3, 2023. As no representative of the applicant or his estate filed such submission, there is no reasonable alternative save to dismiss this application.
23For the above reasons, the application is dismissed as abandoned.
ORDER
24The application is dismissed as abandoned.
Released: December 21, 2023
Brett Todd
Vice-Chair