Licence Appeal Tribunal File Number: 20-015448/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:
Sokho Chim
Applicant
and
Wawanesa Insurance
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Sokho Chim, Self-Represented
For the Respondent: Symone Marlowe, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Sokho Chim (the “applicant”) was involved in a motor vehicle accident on January 7, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Wawanesa Mutual Insurance Company (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
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 limit of the Minor Injury Guideline (“MIG”)?
Is the applicant entitled to $375.00 for physiotherapy services, recommended by The Centre for Health and Rehab in a treatment plan/OCF-18 dated June 21, 2019?
Is the applicant entitled to $184.96 for transportation and gas expenses, submitted on an expenses claim form/OCF-6 dated February 20, 2019?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RELIEF
3The application is dismissed, as he has not presented any submissions or evidence. The applicant has not met his evidentiary burden to establish that his accident-related injuries fall outside of the minor injury definition in s. 3 of the Schedule. The applicant is also not entitled to the treatment plan and the claimed expenses as he has not met his evidentiary burden and demonstrated them to be reasonable and necessary. Accordingly, the applicant is not entitled to interest.
ANALYSIS
4I find that the applicant has failed to meet his onus and demonstrate that he is entitled to the benefits claimed.
5The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG and that he is entitled to the benefits claimed. He has made no submissions and tendered no evidence in support of his claims before the Tribunal, despite multiple opportunities to do so. Therefore, he has failed to meet his burden.
6The timeline of events, as I understand them, is as follows:
i. The issues before me were scheduled for a written hearing in a case conference report and order (“CCRO”) dated June 17, 2021. In this CCRO, dates were established for the serving of written submissions and evidence. The applicant was to make his submissions on February 21, 2022, while the respondent was to make its submissions on March 14, 2022. The applicant’s reply submissions, if any, were to be submitted by March 21, 2022. The written hearing itself was scheduled in the CCRO for March 31, 2022.
ii. Bergel Magence Personal Injury Lawyers sent notification to the applicant, the respondent, and the Tribunal on September 17, 2021 that it was no longer representing the applicant. No response was sent by the applicant, or at least no response was forwarded to the Tribunal.
iii. Wawanesa’s legal counsel wrote to the applicant on December 6, 2021 regarding the correspondence from Bergel Magence, inquiring if the applicant had secured new counsel and/or if he intended to continue with his application. He did not reply, or at least no response was forwarded to the Tribunal.
iv. The Tribunal sent correspondence to the applicant on December 9, 2021 asking if he was proceeding with this application or withdrawing. The applicant did not respond.
v. The applicant did not provide submissions by the deadlines imposed in the CCRO. In correspondence to the applicant on February 23, 2022, the respondent requested that these submissions be provided. He did not reply, or at least no response was forwarded to the Tribunal.
vi. The respondent adduced its written submissions by the deadline provided in the CCRO, serving these documents on the Tribunal and the applicant as well as providing a Certificate of Service on March 14, 2022.
vii. The applicant contacted the respondent’s legal representative on March 22, 2022 with questions about his hearing and a request that they contact his chiropractor. The respondent answered by clarifying that it was acting for Wawanesa in this matter, not the applicant, and recommending that he seek legal counsel. The respondent’s legal representative forwarded the email of the applicant and its response to the Tribunal on March 26, 2022. There is no record that the applicant responded to the respondent’s legal representative or the Tribunal.
viii. The Tribunal contacted the applicant by phone on March 15, 2023. He said that he had no intention of withdrawing his application and that he was unaware that he had no legal representation, claiming that his former representative did not notify him.
7This narrative shows that the applicant has been afforded numerous chances to clarify this situation for a considerable amount of time. As I write this decision, it is now just over a year since the applicant’s final submissions were due on March 21, 2022, and over 18 months since the applicant was notified that he was no longer represented by counsel on September 17, 2021. I do not accept that the applicant remained unaware that he did not have legal representation as late as March 15, 2023. He was notified of this fact on many occasions, by his former legal representative, by the Tribunal, and even by the respondent’s counsel. Yet there is no evidence that he replied to such queries, or made an effort to deal with the loss of his legal counsel, let alone tried to meet the requirements of the CCRO and send in his hearing submissions.
8Given the applicant’s longstanding and ongoing failure to provide any hearing submissions or evidence, I find that the applicant has not met his evidentiary burden with regard to the issues in dispute. The application is dismissed.
ORDER
9The applicant has not established that his accident-related injuries fall outside of the definition of a minor injury in the Schedule, nor has he demonstrated that he is entitled to the treatment plan and expenses, plus interest, that are in dispute.
10The application is dismissed.
Released: April 17, 2023
Brett Todd
Vice-Chair