Maria Edwards v. Economical Insurance Company, 2023 CanLII 32798

21-004807/AABS

Licence Appeal Tribunal File Number: 21-004807/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:

Maria Edwards

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Not in Attendance

For the Respondent: Kamal Sidu, Adjuster Hussein Pirani, Counsel

Court Reporter: Heather Penfound-McNutt, Taylor Court Reporting

Heard by Videoconference: March 27, 2023

OVERVIEW

1Maria Edwards, the applicant, was involved in an automobile accident on April 10, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2I was assigned to a three-day hearing scheduled to commence on March 27, 2023. The respondent and its representative attended the hearing. The applicant did not. To allow for the applicant’s participation, I stood the matter down for a period of time so that the Tribunal could attempt to make contact. The Tribunal’s attempts to contact the applicant by both phone and email were unsuccessful. The respondent brought a motion seeking an order from the Tribunal dismissing the application as abandoned which I will address below.

ISSUE

3The issues to be decided are as follows:

1. 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 and in the Minor Injury Guideline? Note: The parties agree the MIG limits have been exhausted.

2. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from August 3, 2020 to April 10, 2021?

3. Is the applicant entitled to $3,456.79 for physiotherapy, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) submitted May 13, 2019?

4. Is the applicant entitled to $225.62 ($1,299.92 less $1,074.30 approved) for physiotherapy, proposed by 101 Physio in a plan submitted July 17, 2019?

5. Is the applicant entitled to $2,133.88 for physiotherapy, proposed by 101 Physio in a plan submitted October 4, 2019?

6. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated August 20, 2019?

7. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments in a treatment plan dated September 18, 2019?

8. 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?

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

RESULT

4The application is dismissed. The applicant did not attend the videoconference hearing and failed to provide any evidence to support her application. The applicant has therefore not met her onus.

ANALYSIS

5Rule 3.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (Effective February 7, 2019 (“Rules”) provides that the Tribunal may dismiss an appeal without a hearing if it is found that the applicant has abandoned the proceeding. Rule 3.5 provides that prior to dismissing an appeal as abandoned the Tribunal shall provide the party with notice of its intent to dismiss the appeal along with reasons and permit the parties to file written submissions on whether the appeal should be dismissed as abandoned. In this case, the Tribunal did not provide the applicant with notice of its intent to dismiss the matter as abandoned.

6However, section 7(1) of the Statutory Powers and Procedure Act provides that where a Tribunal is satisfied that proper notice of a hearing has been provided to the parties, it may proceed with the hearing in a party’s absence. In this case, I am satisfied that the applicant was provided with adequate notice of the hearing. Further, despite making attempts to contact the applicant and standing the matter down for a period of time she did not attend. Consequently, the hearing proceeded in her absence and no submissions or evidence were tendered on the applicant’s behalf.

7The respondent submits that the application should be dismissed because the applicant:

i) Did not attend the hearing despite receiving sufficient notice;

ii) Failed to submit a document brief or witness list despite receiving the Tribunal’s case conference report and order;

iii) Failed to respond or participate in the motion hearing to address the respondent’s request that the application be dismissed as abandoned; and

iv) Failed to attend the hearing and submit evidence in support of her claim. Consequently, she has failed to meet her onus in support of the benefits in dispute.

8Rule 4.4 of the Tribunal’s Rules requires an applicant to notify the Tribunal promptly of any change in contact information. Rules 6.1 and 6.2 further set out the process by which the Tribunal may serve a document on a party by regular mail and email. I am satisfied that the Tribunal sent the applicant proper notice of this scheduled hearing date for the following reasons.

9On October 14, 2022, the Tribunal sent the notice to the representatives for both parties.

10On February 27, 2023, the applicant’s paralegal removed herself from the record and provided the Tribunal with the applicant’s email address. In my view, the former representative had a legal obligation to ensure that the applicant was provided with notice of the upcoming hearing date. Moreover, the respondent also sent an email to the applicant dated February 27, 2023, attaching the notice of hearing and the case conference report and order and reminded her of the deadlines to exchange document briefs and witness lists. The applicant did not respond to the respondent and did not serve or file a document brief or witness list with the Tribunal. Further, after the representative removed themselves from the record, the Tribunal has been forwarding all communication to the applicant’s email address.

11In addition, the applicant did not respond to, or participate in a motion hearing brought by the respondent on March 7, 2023 seeking an order from the Tribunal dismissing the application as abandoned. In my view, the notice of motion and motion order dated March 20, 2023 provided additional notice to the applicant of both the upcoming hearing date, but also provided notice that the respondent was seeking a dismissal of the application.

12On March 24, 2023, the Tribunal sent both parties an email attaching the notice of hearing and videoconference hearing link. The Tribunal also advised that no submissions had been received from the applicant.

13I find that despite receiving sufficient notice, the applicant has chosen not to participate in the Tribunal’s process and has failed to respond to any communication. It is the applicant’s onus to submit evidence in support of her claims. She has failed to do so. Consequently, the application is dismissed.

ORDER

14For all of the above-noted reasons, this application is dismissed.