Kaliah Brown v. Wawanesa Mutual Insurance Company, 2023 CanLII 58538

Licence Appeal Tribunal

File Number: 21-013707/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:

Kaliah Brown

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATORS: Chloe Lester and Jeremy A. Roberts

APPEARANCES:

For the Respondent: Naiomie Sukhai, Adjuster Matthew Dugas, Counsel

Court Reporter: Observers: Siriana Hanson Yanick Charbonneau (LAT) Bonnie Oakes Charron (LAT)

HEARD: by Videoconference: June 19, 2023

OVERVIEW

1Kaliah Brown, the applicant, was involved in an automobile accident on May 6, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2We were assigned to a two-day hearing scheduled to commence on June 19, 2023. The respondent and its representative attended the hearing. The applicant did not. To allow for the applicant’s participation, we waited for one hour for her to arrive. During that time, the Case Management Officer attempted unsuccessfully to contact the applicant by both phone and email. At 10:30AM, after waiting an hour, we proceeded with the hearing without the applicant.

ISSUES:

3The issues to be decided are as follows:

1. Is the applicant entitled to $4,291.80 for physiotherapy services, proposed by Gibson Wellness Centre, in a treatment plan/OCF-18 (“plan”) submitted November 13, 2019?
2. Is the applicant entitled to $5,091.80 for physiotherapy services, proposed by Gibson Wellness Centre, in a treatment plan submitted December 9, 2020?
3. Is the applicant entitled to $8,283.64 for rehabilitation support worker services, proposed by Gibson Wellness Centre, in a treatment plan submitted August 13, 2021?
4. Is the applicant entitled to $2,200.98 for an attendant care (Form-1) assessment, proposed by Gibson Wellness Centre, in a treatment plan submitted December 9, 2020?
5. Is the respondent liable to pay an award under s. 10 of O. Reg 66 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT:

4The applicant is not entitled to the treatment plans. The applicant did not attend the videoconference hearing and failed to provide any submissions or evidence to support entitlement to the benefits. The applicant has therefore not met her onus. The application is dismissed.

ANALYSIS:

5When considering how to proceed when an applicant does not attend the hearing, there are several relevant authorities that should be considered. Firstly, s. 7(3) of the Statutory Powers Procedures Act (SPPA) provides that where a Tribunal is satisfied that proper notice of an electronic hearing has been provided to parties, it may proceed with the hearing in a party’s absence.

6When considering the issue of proper notice, Rules 6.1 and 6.2 of the Common Rules of Practice & Procedure further set out the process by which the Tribunal may serve a document on a party by regular mail and email. Lastly, Rule 4.4 requires an applicant to notify the Tribunal promptly of any change in contact information.

7We are satisfied that the Tribunal sent the applicant proper notice of this scheduled hearing date for the following reasons:

a. The applicant attended the case conference on November 4, 2022. At the case conference, the applicant confirmed that the email the Tribunal had for her was correct.

b. On January 16, 2023, the Tribunal sent an email to both parties that requested their input on possible dates for the hearing. This was sent to the applicant’s email which she had confirmed during the case conference. A follow up email was sent on January 20, 2023.

c. On February 17, 2023, the Tribunal sent the Notice of Hearing to both parties. This was sent to the applicant by email. On June 14, 2023, the Tribunal sent both parties an email attaching the Notice of Hearing and the videoconference link.

d. We are also satisfied that the applicant did not request a change of hearing format on the basis of an alleged significant prejudice, within the meaning of s. 6(5)(c) of the SPPA.

8Given this, we find that the applicant received sufficient notice of the hearing and chose not to attend.

9Further, when the applicant did not appear at the video conference hearing, the case management officer phoned the applicant. The CMO was unsuccessful in reaching her and sent her the videoconference hearing details again via email. We waited an hour before proceeding with the hearing. The applicant did not attend. Consequently, the hearing proceeded in her absence.

10In accordance with the case conference order, the applicant intended to dispute the denials of four treatment plans.

11In order to be entitled to treatment plans, in accordance with s. 15(1) of the Schedule, the applicant must demonstrate that the proposed treatment plans are reasonable and necessary expenses. This can be demonstrated through the treatment plan and compelling contemporaneous evidence.

12The respondent submits that the application should be dismissed because the applicant:

a. Did not attend the hearing despite receiving sufficient notice;

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

c. Failed to attend the hearing and submit evidence in support of her claims. Consequently, she has failed to meet her onus in support of the benefits in dispute. Since neither the applicant nor a representative appeared at the hearing, no submissions or evidence were tendered to prove why the benefits are reasonable and necessary.

13It is the applicant’s onus to prove entitlement to the benefits. She has failed to provide any submissions or evidence on the issues in dispute. Therefore, she is not entitled to any benefits being claimed.

14As there are no payments owed, the applicant is not entitled to interest.

ORDER:

15We order that the application be dismissed.