Licence Appeal Tribunal File Number: 20-015439/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:
Alexandra Barakh
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Alexandra Barakh, Applicant Yianniko Kozoronis, Counsel
For the Respondent: Wawanesa Insurance Colleen Mackeigan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Alexandra Barakh, the applicant, was involved in an automobile accident on September 22, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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 and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to a medical benefit in the amount of $3,335.98 for psychological services, recommended by Downsview Healthcare Inc., in a treatment plan/ OCF-18 submitted on September 2, 2020?
iii. Is the applicant entitled to the cost of an examination in the amount of $2,000.00 for a psychology assessment recommended by Downsview Healthcare Inc., in a treatment plan/ OCF-18, submitted on February 5, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. The applicant has not met her evidentiary burden to establish her entitlement to the benefits in dispute. Given there are no benefits payable, she is not entitled to applicable interest.
ANALYSIS
4The onus is on the applicant to demonstrate that she is entitled to the benefits claimed. She made no submissions and tendered no evidence in support of her claims before the Tribunal. Therefore, I find that the applicant has failed to meet her onus and I dismiss the application.
5Both parties were in attendance at the case conference conducted on August 23, 2021, where a written hearing was scheduled for April 29, 2022. The parties canvassed outstanding productions at the case conference and agreed they did not require an order. It was agreed the parties would disclose any items remaining undisclosed by February 28, 2022. It was agreed by the parties that the applicant would file her submissions and evidence on April 8, 2022; the respondent file their submissions and evidence on April 22, 2022; and the applicant’s reply was agreed to be filed by April 28, 2022.
6On April 11, 2022, on consent, the applicant filed a request to adjourn the written hearing scheduled for April 29, 2022, for the purpose of obtaining additional time to attempt to resolve the dispute. On April 11, 2022, the Tribunal made an order allowing the adjournment of the written hearing, without specifying a resumption date, but setting a schedule for the parties’ written submissions, with the applicant submitting her submissions and evidence 30 days prior to the new written hearing date, the respondent filing their submissions and evidence 14 days before the hearing date, and the applicant’s reply was ordered to be filed 7 days prior to the new written hearing date.
7The parties were served with notice of the new written hearing dated May 9, 2022, with the new written hearing scheduled for January 6, 2023. The applicant’s submissions and evidence for the purpose of the written hearing, and by virtue of the order rendered on April 11, 2022, were required to be served and exchanged with the respondent on or about December 5, 2022; the respondent’s submissions and evidence were to be served on or about December 21, 2022; and the reply by the applicant was to be served on or about December 30, 2022.
8However, the applicant has not served any submissions and evidence in compliance with the order of the Tribunal rendered on April 11, 2022, for the purpose of the written hearing, and according to the schedule ordered by the Tribunal. The applicant has not communicated with the Tribunal for the purpose of addressing the failure to tender submissions and evidence in support of her claims before the Tribunal to date.
9The parties have failed to comply with the adjournment order of the Tribunal, and failed to provide any submissions and evidence by the deadlines imposed by the Tribunal.
10Over seven months have now elapsed since the written submission deadlines and the hearing set for January 6, 2023.
11The parties have been afforded ample time to provide submissions, a procedural update, or to file a Notice of Withdrawal, and they have failed to do so.
12Given the applicant’s failure to provide any hearing submissions or evidence, it is clear the applicant has not met her evidentiary burden with regard to the issues in dispute. This application shall be dismissed.
ORDER
13The applicant has not met her evidentiary burden to establish her entitlement to the benefits in dispute.
14Given there are no benefits payable, the applicant is not entitled to applicable interest.
15The application is dismissed.
Released: August 23, 2023
Janet Rowsell
Adjudicator