Dwyer v. Economical Insurance, 2023 CanLII 40113

Citation: Dwyer v. Economical Insurance, 2023 ONLAT 21-004693/AABS

Licence Appeal Tribunal File Number: 21-004693/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.

Parties

Between:

Melody Dwyer

Applicant

and

Economical Insurance

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Pasquale Maiolo, Counsel

For the Respondent:

Ryland MacDonald, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Melody Dwyer (the “applicant”) was involved in a motor vehicle accident on December 28, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Economical Insurance (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:

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 of the Minor Injury Guideline (“MIG”)?

2. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 6, 2020 to date and ongoing?

3. Is the applicant entitled to $1,271.55 for physiotherapy services, proposed by Bloor West Physiotherapy in a treatment plan/OCF-18 submitted on July 30, 2020?

4. Is the applicant entitled to $3,355.55 for physiotherapy services, proposed by Bloor West Physiotherapy in a treatment plan/OCF-18 submitted on March 2, 2021?

5. Is the applicant entitled to $3,355.55 for physiotherapy services, proposed by Bloor West Physiotherapy in a treatment plan/OCF-18 submitted on November 17, 2020?

6. 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?

7. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RELIEF

3The application is dismissed. The applicant has not met her evidentiary burden, as she has not adduced any submissions or evidence. As a result, she remains within the MIG, is not entitled to an NEB, and is not entitled to the treatment plans, or interest. As no benefits are owing, the respondent is not liable to pay an award.

ANALYSIS

4I find that the applicant has failed to meet her burden and demonstrate that she is entitled to the benefits claimed.

5The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG and that she is entitled to the NEB and treatment plans in dispute. She has made no submissions and tendered no evidence in support of her claims before the Tribunal. Therefore, she has failed to meet her burden.

6A case conference report and order (“CCRO”) dated November 2, 2021 set the issues now before me down for a written hearing dated June 27, 2022. Applicant submissions were due May 30, 2022. Respondent submissions were due June 13, 2022. Applicant’s reply submissions, or notice that no reply submissions would be filed, were due June 20, 2022.

7The applicant filed a motion with the Tribunal on May 5, 2022 to extend the hearing deadlines noted above. The respondent opposed this motion. The Tribunal denied the applicant’s request in a motion order dated June 23, 2022, which ordered that the applicant’s submissions were to be filed within 15 calendar days. Thus, the applicant’s initial submissions were due by July 8, 2022. The motion order gave the respondent seven days (July 15, 2022) after this to file any additional submissions in response to the applicant’s submissions (the respondent filed its initial submissions on June 16, 2022). Lastly, the applicant was allowed seven further days (July 22, 2022) after this to file a reply.

8The applicant did not file any submissions by the deadline of July 8, 2022 established by the motion order. The applicant has also not filed any submissions since that time, and has not, based on the information available to me, been in communications with either the Tribunal or the respondent over the subsequent nine months. The applicant’s counsel did not respond to an email from the Tribunal on March 17, 2023 inquiring into the status of this application.

9Given the applicant’s longstanding and ongoing failure to provide any hearing submissions or evidence, I find that she has not met her evidentiary burden with regard to the issues in dispute.

ORDER

10As the applicant has made no submissions and tendered no evidence in support of her claims before the Tribunal, she is not entitled to any of the benefits sought, nor interest. It follows that the respondent is not liable to pay an award.

11The application is dismissed.