Ethel Timar v. Aviva General Insurance Company, 2023 CanLII 26949

Licence Appeal Tribunal

File Number: 20-004862/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:

Ethel Timar Applicant

and

Aviva General Insurance Company Respondent

DECISION

ADJUDICATOR: Sandra Driesel

APPEARANCES:

For the Applicant: Applicant did not attend

For the Respondent: Arsheena Harripaul, Litigation Specialist Kristofer Angle, Counsel

HEARD: by Videoconference: March 6, 2023

OVERVIEW

1Ethel Timar, the applicant, was involved in an automobile accident on August 18, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by the respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The applicant failed to appear at today’s hearing. The applicant was represented by counsel when the LAT application was filed on May 11, 2020. This matter was originally scheduled for a five-day hearing commencing July 12, 2021. Motions were filed regarding productions and to add the applicant’s daughter as a witness. As a result of a motion filed by the applicant on July 11, 2021, the Tribunal granted an adjournment for the applicant to seek a medical opinion regarding her mental capacity to proceed in the hearing process. The July hearing dates were vacated.

3A case conference was resumed on January 26, 2022, and the applicant failed to appear. However, the adjudicator was satisfied with evidence presented by the applicant’s representative that the applicant was not mentally incapable of participating in the hearing. The matter was rescheduled to a five-day hearing commencing December 19, 2022.

4The applicant filed an adjournment request December 12, 2022, citing she no longer had a representative. The Tribunal notes that on December 13, 2022, her lawyer of record confirmed with the Tribunal that he was no longer representing her. In an adjournment Order dated December 14, 2022, the Tribunal vacated the December 2022 hearing and ordered the following, which led to today’s event (a five-day hearing scheduled to start March 6, 2023):

[4] The hearing is adjourned to a date to be scheduled by the Tribunal. The Tribunal will contact the parties to reschedule the hearing, which shall commence no earlier than February 21, 2023, and no later than March 27, 2023. The hearing is also marked peremptory on the applicant to proceed, meaning absent exceptional and extraordinary circumstances, no further adjournments of the hearing will be granted.

5On the first day of the hearing, scheduled to begin at 9:30 am, neither the applicant nor anyone representing her were present. The respondent noted they were unable to contact the applicant and she has failed to respond to any of their correspondence. I checked the Notice of Hearing dated January 5, 2023 and noted that the Tribunal sent a copy by mail to the applicant, to the address listed on the LAT application. By 10:30 am, the hearing had commenced without the applicant present and no evidence was filed with the Tribunal on behalf of the applicant.

6In accordance with section 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22(“SPPA”) which addresses the effect of non-attendance at a hearing by a party after due notice, the hearing proceeded without the applicant’s participation.

7The respondent withdrew its submissions after confirming the applicant failed to make any submissions.

ISSUES

8The issues in dispute are:

i. Are the applicant’s injuries predominately minor as in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to $185.00 per week for a non-earner benefit (“NEB”) for the period September 15, 2018, to date and ongoing?

iii. Is the applicant entitled to the following amounts for treatment plans defined as being for “medical services”:

1. $3,643.76, denied October 12, 2018?
2. $2,195.98, denied February 19, 2019?
3. $1,853.48, denied February 1, 2019?

iv. Is the applicant entitled to the following costs for assessments:

1. $2,254.67 for chronic pain assessment, denied February 10, 2019?
2. $2,235.27 for psychological assessment, denied February 19, 2019?
3. $2,486.00 for a psychological assessment, denied August 28, 2020?

v. Is the applicant entitled to $446.26 for assistive devices, denied December 19, 2018?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

9With no submissions or evidence tendered for the hearing, the applicant has not met her onus to prove that she is entitled to the benefits claimed. Therefore, I cannot find that the applicant’s claim for an NEB, treatment plans and assessments are reasonable or necessary.

10As there are no benefits owing there is no entitlement to interest.

ANALYSIS

11I find that the Tribunal provided reasonable notice of the hearing in accordance with section 6 of the SPPA. The applicant failed to attend after the Tribunal sent correspondence to determine both her status regarding potential representation at the hearing and to determine the status of her submissions for the hearing. The applicant failed to reply.

12The respondent noted that it made attempts through her previous lawyer to establish an alternative or new contact information given the applicant failed to return calls or respond to mail communication.

13The applicant did not file any documentary briefs for the hearing as ordered by the Tribunal. With the onus being on the applicant to prove entitlement to accident benefits, the applicant’s claim (the entirety of the LAT application) must fail for lack of evidence.

ORDER

14The applicant’s claim for an NEB, treatment plans and assessments in dispute are dismissed.

15As there are no benefits payable there is no interest owing.