Licence Appeal Tribunal File Number: 21-003359/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:
Zaryeen Arshia
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Janet Hueglin Hartwick
APPEARANCES:
For the Applicant:
Zaryeen Arshia, Applicant, Self-Represented
(Did not attend)
For the Respondent:
Chris Metcalf, Claims Specialist
Mai Nguyen, Counsel
Interpreter (Urdu language):
Safia Parveen
HEARD: by Videoconference:
April 24, 2023
OVERVIEW
1Zaryeen Arshia, the applicant, was involved in an automobile accident on December 9, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2This matter was scheduled for a 5-day videoconference. The applicant did not attend the hearing and a reason was not provided for her absence. Despite the Tribunal’s attempts to contact the applicant by phone and email, she did not join the hearing. The videoconference link was disconnected one hour later.
3This is the third hearing the applicant has not attended. The first hearing was set for September 26 to 30, 2022. The applicant advised through her counsel that she was ill and the matter was adjourned. The second hearing was set to begin on February 27, 28, March 1, 2 and 3, 2023. The applicant once again did not attend the rescheduled hearing. The Tribunal’s Adjournment Order indicated the applicant did not receive notice of the hearing, or of the motion that was to be heard, as they were served to her representative who removed himself as her representative on February 23, 2023. The Order indicated the next hearing is peremptory on the applicant to proceed, with or without representation.
4In my view, it is appropriate for today’s hearing to proceed in the absence of the applicant pursuant to section 7(1) of the Statutory Powers and Procedures Act. I am satisfied the applicant received notice of today’s videoconference hearing on March 17, 2023. The Tribunal confirmed the applicant’s contact information prior to the dissemination of the notice. This file is over 750 days old. In keeping with Rule 3.1 of the Tribunal’s Common Rules of Practice and Procedure, I find that proceeding with the hearing is an efficient and proportional resolution of this dispute.
ISSUES
5The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore already consumed the $3,500.00 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to an income replacement benefit of $400.00 per week from March 8,2021 to date and ongoing?
iii. Is the applicant entitled to $226.86 ($1,326.86 less $1,100.00 approved) for physiotherapy proposed by ONT 2121587 in a treatment plan/OCF18 denied on July 7, 2020?
iv. Is the applicant entitled to $1,443.72 for physiotherapy proposed by ONT 2121587 in a treatment plan/OCF18 denied on October 27, 2020?
v. Is the applicant entitled to $2,200.00 for a physiatry assessment, proposed by Alliance Diagnostics in a treatment plan/OCF18 denied on March 24, 2021?
vi. Is the applicant entitled to $1,271.70 for a worksite assessment proposed by Spinal Touch Wellness in a treatment plan/OCF18 denied on April 7, 2021?
vii. Is the applicant entitled to $1,723.41 for a functional ability evaluation (FAE) proposed by Alliance Diagnostics in a treatment plan/OCF18 denied on April 28, 2021?
viii. Is the applicant entitled to $2,200.00 for a neurological assessment proposed by Alliance Diagnostics in a treatment plan/OCF18 denied on May 27, 2021?
ix. Is the applicant entitled to $2,200.00 for an orthopaedic assessment proposed by Alliance Diagnostics in a treatment plan/OCF18 denied on June 9, 2020?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant did not provide any evidence to the Tribunal in support of her claim. As a result, she has not satisfied her burden to demonstrate entitlement to the benefits in dispute.
PROCEDURAL ISSUES
7The respondent seeks to add costs as an issue in dispute pursuant to section 19.2 of the Common Rules of Practice & Procedure. In accordance with the Rules, a party is entitled to add the issue of costs to a proceeding before a decision is released. I consent to add costs as an issue in dispute.
8I will now turn to discuss the substantive issues in dispute for this hearing.
ANALYSIS
The applicant’s application is dismissed
9The applicant failed to attend the hearing and failed to present a case. As it is the applicant’s burden to demonstrate entitlement to the benefits in dispute, and where the Tribunal was not presented with evidence from the applicant in support of her application, it follows that the applicant cannot be successful with her claim. I find that the applicant is not entitled to any of the benefits claimed.
The respondent is not entitled to costs
10I find the respondent is not entitled to costs.
11The respondent submits it is entitled to costs in the amount of $1,500.00. It asserts it was prepared to proceed to a hearing on three separate occasions. It submits the applicant’s behaviour should be deterred for the following reasons.
12First, the applicant did not comply with the order to provide medical documentation in support of her position that she was unable to participate in the hearing that started on September 26, 2022. Second, it asserts the applicant was in fact able to participate in the September 2022 hearing. The respondent’s surveillance footage taken while the applicant did not attend the first hearing due to illness, scheduled for September 26 to 30, 2022, shows the applicant attending appointments in the community. The respondent did not receive the opportunity to obtain a ruling on its motion to dismiss the application, based on its surveillance, because the applicant failed to attend the adjourned proceeding on February 27, 2023. Third, the respondent submits the applicant’s non-attendance at today’s hearing shows little respect for the Tribunal’s process.
13I am not persuaded by the respondent’s submissions. While I find the applicant’s non-attendance at today’s hearing is a misuse of time and resources, in my view, it does not merit an award of costs due to a pattern of absenteeism. Accordingly, I decline to award costs to the respondent.
ORDER
14The applicant is not entitled to any of the benefits in dispute, as she failed to attend the hearing or present a case to support her application.
15I decline to award costs to the respondent.
16The application is dismissed.
Released: June 21, 2023
__________________________
Janet Hueglin Hartwick
Adjudicator