Licence Appeal Tribunal File Number: 20-012944/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:
Shane R. Hopkins
Applicant
and
Peel Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Inna Zaremba, Paralegal
For the Respondent: Maia Abbas, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Shane R. Hopkins (the “applicant”) was involved in a motor vehicle accident on December 23, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Peel 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 an income replacement benefit (“IRB”) of $384.30 per week from March 11, 2019 to date and ongoing?
Is the applicant entitled to $1,384.99 for a functional ability assessment, proposed by Unison Medical Assessments in a treatment plan/OCF-18 submitted on July 26, 2019?
Is the applicant entitled to $1,999.01 for a neurological assessment, proposed by Unison Medical Assessments in a treatment plan/OCF-18 submitted on August 1, 2019?
Is the applicant entitled to $1,999.01 for a chronic pain assessment, proposed by Unison Medical Assessments in a treatment plan/OCF-18 submitted on August 17, 2019?
Is the applicant entitled to $2,197.92 for a psychological assessment, proposed by Unison Medical Assessments in a treatment plan/OCF-18 submitted on September 4, 2019?
Is the applicant entitled to $1,999.01 for a chronic pain assessment, proposed by Unison Medical Assessments in a treatment plan/OCF-18 submitted on May 6, 2020?
Is the applicant entitled to $1,292.00 for chiropractic services, proposed by Grey-Simcoe Sports Medicine & Rehab in a treatment plan/OCF-18 submitted on April 26, 2019?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
Is the respondent entitled to costs of $2,100.00?
RELIEF
3The application is dismissed. The applicant has not met his evidentiary burden, as he has not adduced any submissions or evidence. As a result, he remains within the MIG, is not entitled to an IRB, and is not entitled to the assessments and treatment plans, or interest on same.
4The respondent is not entitled to costs, as it has not proven that the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith.
ANALYSIS
Issues in Dispute
5I find that the applicant has failed to meet his burden and demonstrate that he is entitled to the benefits claimed.
6The 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 IRB and assessments and treatment plans in dispute. He has made no submissions and tendered no evidence in support of his claims before the Tribunal. Therefore, he has failed to meet his burden.
7A Case Conference Report and Order (“CCRO”) dated July 20, 2021 set the matter now before me down for a written hearing. Applicant submissions were due March 18, 2022. Respondent submissions were due April 8, 2022. The applicant’s reply submissions, or notice that no reply submissions would be filed, were due April 22, 2022. The hearing itself was scheduled for April 29, 2022.
8The applicant did not file any submissions by the deadlines established in the CCRO. The applicant has not filed materials since that time. The applicant has also not replied to email correspondence regarding the missing submissions that were sent by the Tribunal on April 22, 2022, April 29, 2022, and May 4, 2022.
9The respondent filed its submissions on April 8, 2022, meeting the deadline set in the CCRO. In its submissions, the respondent notes that the applicant has failed to produce any submissions or evidence by the dates established in the CCRO, and as a result requests that the application be dismissed with prejudice, pursuant to Rule 3.4 of this Tribunal’s Common Rules of Practice and Procedure effective October 2, 2017 (the “Rules”).
10I agree with the respondent that the application should be dismissed. Given the applicant’s longstanding and ongoing failure to provide any hearing submissions or evidence, I find that he has not met his evidentiary burden with regard to the issues in dispute.
Respondent Costs
11The respondent is not entitled to costs, as it has not proven that the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith.
12In its written submissions, the respondent has added a request for costs pursuant to Rule 19. Rule 19.1 holds that a party may make a request to the Tribunal for costs where it believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.2 states that a request for costs may be made to the Tribunal orally or in writing at a case conference or a hearing, at any time before the decision or order is released. And Rule 19.4 mandates that any submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct that it believes warrants an award for costs.
13As the respondent has followed all of the above Rule provisions, I have added the costs request to the issues in dispute. Specifically, the respondent claims it has incurred expenses of approximately $4,200.00 in legal fees to defend this proceeding. As a result, it requests an order that the applicant pay half of these expenses, which would of course be $2,100.00.
14I do not find the respondent’s argument persuasive. The respondent does not present any evidence demonstrating that the applicant has behaved in such a way as to warrant costs, other than to complain about the applicant not filing submissions for the hearing. Simply noting that the applicant “knew, or ought to have known, that Peel Mutual would incur costs and spend time defending the claims against it” does not, at least in my view, support a claim that the applicant behaved in bad faith, or in an unreasonable, frivolous, or vexatious manner.
15I also rely on Rule 19.5, which mandates that the Tribunal shall consider relevant factors when deciding whether to award costs. The “potential impact an order for costs would have on individuals accessing the Tribunal system” section of Rule 19.5 is most relevant here. Ordering costs when an applicant’s only alleged misconduct is not filing submissions would have a negative impact on the ability of applicants to access the Tribunal system, as an applicant would have to always consider that withdrawing or abandoning a dispute would or could result in a potentially significant financial penalty.
16For the above reasons, the respondent is not entitled to costs.
ORDER
17The application is dismissed. As the applicant has made no submissions and tendered no evidence in support of his claims before the Tribunal, he is not entitled to any of the benefits sought, nor interest.
18The respondent is not entitled to costs.
Released: May 3, 2023
Brett Todd
Vice-Chair