Citation: Wallace v. Intact Insurance, 2023 ONLAT 21-001069/AABS

Licence Appeal Tribunal File Number: 21-001069/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:

Cecil Wallace

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

No one appearing

For the Respondent:

Callum Micucci, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Cecil Wallace, (the “applicant”), was involved in an automobile accident on July 14, 2018, 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 Intact Insurance (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:

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 and in the Minor Injury Guideline (“MIG”)?

2. Is the applicant entitled to a medical benefit for $1,100.00 for chiropractic services in a treatment plan (“OCF-18”) proposed by The Canadian Active Rehab Centre submitted January 18, 2020 and denied February 3, 2020?

3. Is the applicant entitled to a medical benefit for $1,750.00 for optometric services in an OCF-18 proposed by The Canadian Active Rehab Centre submitted July 22, 2019 and denied September 17, 2019?

4. Is the applicant entitled to a medical benefit for $3,341.87 for psychological services in an OCF-18 by The Canadian Active Rehab Centre submitted October 22, 2020 and denied November 4, 2020?

5. Is the applicant entitled to a medical benefit for $3,970.30 for chiropractic services in an OCF-18 proposed by The Canadian Active Rehab Centre submitted December 1, 2018 and denied February 18, 2019?

6. Is the applicant entitled to a medical benefit for $5,011.03 for chiropractic services in an OCF-18 proposed by The Canadian Active Rehab Centre submitted October 1, 2019 and denied December 24, 2019?

7. Is the applicant entitled to a medical benefit for $2,074.81 for psychological services in an OCF-18 proposed by The Canadian Active Rehab Centre submitted May 16, 2019 and denied September 10, 2019?

8. Is the respondent liable to pay an award pursuant to s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The application is dismissed.

4The applicant has not met his evidentiary burden to establish his impairments are not predominantly minor and therefore subject to treatment beyond the $3,500.00 limit of the MIG. Also, the applicant has failed to demonstrate that the disputed OCF-18s are reasonable and necessary.

5Given there are no benefits owed or payments outstanding, the applicant is not entitled to an award, nor interest.

ANALYSIS

6The onus is on the applicant to demonstrate that he is entitled to the benefits claimed. He made no submissions and tendered no evidence in support of his claims before the Tribunal. Therefore, I find that the applicant has failed to meet his onus and dismiss the application.

7A case conference was conducted on January 11, 2022. The applicant attended the case conference with his previous representative. A written hearing was scheduled for October 31, 2022, and specific written hearing submission deadlines were set.

8On September 16, 2022, the applicant’s previous representative filed a notice of motion with the Tribunal for an Order seeking an adjournment of the written hearing and an amended timetable for the parties’ submissions. The applicant’s previous representative further advised in her notice of motion that there had been a breakdown in the solicitor-client relationship, and she would be seeking to remove herself as counsel of record. The applicant’s previous representative also advised that an adjournment was necessary to allow the applicant time to appoint new counsel.

9On September 20, 2022, The Tribunal granted the adjournment request and adjourned the written hearing to January 31, 2023. The Tribunal further ordered that the applicant should file his initial submissions 30 calendar days prior to January 31, 2023.

10On September 23, 2022, a Notice of Written Hearing, was sent by mail to the applicant’s last known address by the Tribunal. This correspondence advised the applicant that the written hearing for the within matter was now scheduled for January 31, 2023.

11The applicant failed to provide his written submissions by the mandated deadline of December 30, 2022. On January 11, 2023, the Tribunal sent correspondence to the applicant which advised that the Tribunal’s attempts to contact the applicant to date had been unsuccessful. Further the Tribunal asked the applicant to contact the assigned CMO by January 20, 2023, to advise if he had retained new counsel or if he intended to proceed with the hearing as a self-represented party. This correspondence further advised the applicant that there was a written hearing scheduled for January 31, 2023.

12On January 17, 2023, the respondent provided its written submission and evidence. The submissions were served on the Tribunal and directly on the applicant via regular letter mail to his address. The respondent provided a signed Certificate of Service, dated January 17, 2023.

13On February 14, 2023, the Tribunal reminded the applicant via email that his written submissions were past due for the within matter. On March 29, 2023, the applicant spoke over the phone to the CMO assigned to this application. The applicant advised that he was not aware that his previous representative no longer represented him for the within matter. Following this conversation, the applicant sent an email to the Tribunal on March 29, 2023, to reiterate that he did not find out that he had no legal representation for this hearing until February of 2023. On April 5, 2023, the Tribunal contacted the applicant via email and advised him that in order to proceed with his file, he would need to file an adjournment request. The Tribunal enclosed a copy of the request for an adjournment form in its email. On August 22, 2023, the Tribunal contacted the parties via email and advised that no submissions had been received for the applicant.

14To date, the applicant has not filed a request for adjournment form. Further, the applicant has not contacted the Tribunal to advise whether he is seeking an adjournment or has retained new representation. Further, the applicant’s written hearing submissions were never filed with the Tribunal. More than 5 months have elapsed since his last contact with the Tribunal, and he still has not provided any submissions or requested an adjournment in writing or orally with a member of the LAT.

15The applicant has been afforded multiple opportunities to provide submissions or submit a request for an adjournment form to the Tribunal. The applicant has failed to do so.

16Given the applicant’s failure to provide any hearing submissions or evidence, it is clear the applicant has not met his evidentiary burden with regard to the issues in dispute. This application shall be dismissed.

ORDER

17As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden to demonstrate that he warrants treatment outside of the MIG, and that he is entitled to the treatment plan in dispute. Given that there are no benefits owed or payments outstanding, the applicant is not entitled to an award, nor interest.