Licence Appeal Tribunal File Number: 20-013419/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:
Nathalia Venerayan
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Ian Maedel
APPEARANCES:
For the Applicant:
No one appearing
For the Respondent:
Yasar Saffie, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nathalia Venerayan, the applicant, was involved in an automobile accident on January 1, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to the cost of an examination expense in the amount of $6,215.00 ($17,967.00 less approved $11,752.00) for multidisciplinary catastrophic assessments recommended by Deena Rogozinsky Therapy in a treatment plan dated October 13, 2020?
ii. Is the applicant entitled to interest on any overdue payments of benefits?
iii. Is the respondent entitled to costs pursuant to Rule 19 of the Tribunal’s Common Rules of Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) (“Common Rules”)?
RESULT
3The application is dismissed. The applicant has not met her evidentiary burden to establish this treatment plan is reasonable and necessary pursuant to ss. 15 and 16 of the Schedule. Given there are no benefits payable, interest is not applicable.
4The respondent is not entitled to costs pursuant to Rule 19 of the Common Rules.
ANALYSIS
5The onus is on the applicant to demonstrate that she is entitled to the benefits claimed. She made no submissions and tendered no evidence in support of her claims before the Tribunal. Therefore, I find that the applicant has failed to meet her onus and dismiss the application.
6A case conference was conducted on June 15, 2021. A written hearing was scheduled for February 28, 2022 and specific written hearing submission deadlines were set.
7According to the Case Conference Report and Order (“CCRO”), the applicant was required to provide initial written submissions by January 21, 2022 and written reply submissions by February 25, 2022.
8The applicant failed to comply with the CCRO and failed to provide any submissions by the deadlines imposed by the Tribunal.
9On January 24 and January 31, 2022, the respondent sent the applicant’s legal representative email communications seeking the outstanding written hearing submissions. No submissions were ever received.
10The respondent provided written submissions by its deadline of February 4, 2022. The submissions were served on the Tribunal, the applicant, and the applicant’s legal representative. The respondent provided a signed Certificate of Service dated February 4, 2022.
11No response was received from either the applicant nor her legal representative. The applicant’s written hearing submissions were never filed with the Tribunal. More than fourteen months have now elapsed since the applicant’s initial submission deadline and approximately thirteen months since the written hearing set for February 28, 2022.
12The applicant has been afforded multiple opportunities to provide submissions, or any procedural update regarding these submissions, and has failed to do so.
13Given the applicant’s failure to provide any hearing submissions or evidence, it is clear the applicant has not met her evidentiary burden with regard to the issues in dispute. This application shall be dismissed.
Costs
14The respondent’s request for costs is denied. Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Common Rules. The threshold for costs is high, and they are rarely awarded. Although the applicant failed to provide any submissions in breach of the CCRO, or respond to the respondent’s inquiries, I do not find this rises to the threshold of costs pursuant to Rule 19.1. Additionally, Rule 19 does not permit cost awards against a party’s legal representative and
pursuant to Rule 19.5, I must consider the chilling effect a cost award may have on similar individuals accessing the Tribunal system.
15Given the totality of the circumstances, I am not satisfied the threshold for costs has been met. Thus, no costs shall be awarded.
ORDER
16The applicant has not met her evidentiary burden to establish that the treatment is reasonable and necessary pursuant to ss.15 and 16 of the Schedule. As a result, she is not entitled to the treatment plan at issue, nor applicable interest.
17The respondent is not entitled to costs pursuant to Rule 19 of the Common Rules.
18The application is dismissed.
Released: April 21, 2023
Ian Maedel
Vice-Chair