Nageswaran v. TD General Insurance Company, 2023 CanLII 60253

Citation: Nageswaran v. TD General Insurance Company, 2023 ONLAT 21-003745/AABS

Licence Appeal Tribunal File Number: 21-003745/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:

Sathyagowri Nageswaran

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Sathyagowri Nageswaran, Applicant (absent)

For the Respondent: Peggy Moore, Representative Sean Van Helden, Counsel Mike Fleurantin, Counsel

HEARD: by Videoconference: May 23, 2023

OVERVIEW

1Sathyagowri Nageswaran, the applicant, was involved in an automobile accident on January 28, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The hearing in this matter was originally scheduled on October 25, 2022. That hearing was rescheduled to accommodate the applicant as she was out of the country due to a family emergency. A second hearing date was scheduled for January 30, 2023.

3Prior to the second date for the hearing, Cary Schneider, applicant’s counsel, submitted a Notice of Motion to be removed as counsel of record and to adjourn the proceeding. He lost contact with the applicant and was unable to get instructions from her. He also submitted that the applicant has mental health issues effecting her ability to function and that she may be outside Canada. I note that Mr. Schneider did not indicate that the applicant requires a litigation guardian. The Tribunal adjourned this matter and scheduled a new hearing date.

4A third hearing date was scheduled for May 23, 2023. The applicant did not appear. The Notice of Videoconference Hearing shows that it was sent to the applicant. The Case Management Officer called the applicant and left multiple messages. The applicant did not reply to these messages.

5At 10:15AM, 45 minutes after the scheduled start of the hearing, I proceeded in the absence of the applicant, as I was satisfied that the applicant had been given proper notice of this third hearing date.

ISSUES

6The issues in dispute are:

i. Is the applicant entitled to receive an income replacement benefit of $400.00 per week from July 10, 2020 to date?

ii. Is the applicant entitled to $2,471.87 for physiotherapy services at Fairview Wellness proposed in a treatment plan (OCF-18) dated February 11, 2021?

iii. Is the applicant entitled to $2,471.87 for physiotherapy services at Fairview Wellness proposed in a treatment plan (OCF-18) dated July 22, 2021?

iv. Is the respondent liable to pay an award under s.10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

vi. Is the applicant entitled to costs because the respondent’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the respondent has acted in bad faith?

RESULT

7The applicant is not entitled to an income replacement benefit.

8The applicant is not entitled to physiotherapy.

9The respondent is not liable to pay an award.

10The applicant is not entitled to interest.

11The applicant is not entitled to costs.

ANALYSIS

12Under section 7(1) of the Statutory Powers Procedure Act (“SPPA”), tribunals may proceed in the absence of a party if notice of an oral hearing has been given to a party and that party does not attend the hearing. For the reasons noted above in paragraph 4, I am satisfied that notice of the hearing was given to the applicant. Section 7(1) of the SPPA also states that under these circumstances, a party is not entitled to any further notice of the proceeding. Consequently, the hearing proceeded.

13The burden of proof rests with the applicant. She has not provided the Tribunal with any evidence or submissions. Therefore, she has not established entitlement to any benefits.

ORDER

14The Tribunal makes the following order:

i. The applicant is not entitled to an income replacement benefit.

ii. The applicant is not entitled to physiotherapy.

iii. The respondent is not liable to pay an award.

iv. The applicant is not entitled to interest.

v. The applicant is not entitled to costs.