Sarveswaran v. Aviva General Insurance Company, 2023 CanLII 87435

Citation: Sarveswaran v. Aviva General Insurance Company, 2023 ONLAT 21-005744/AABS

Licence Appeal Tribunal File Number: 21-005744/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:

Sarvasoruban Sarveswaran

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Satheesan Kumarasamy, Paralegal

For the Respondent: Leanne W. Zabudsky, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sarvasoruban Sarveswaran (the “applicant”) was involved in an automobile accident on May 21, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance Company (the “respondent”) denied certain benefits. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to $2,200.00 for physiotherapy recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan/OCF-18 submitted on October 21, 2020?
2. Is the applicant entitled to $2,200.00 for psychological services recommended by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan/OCF-18 submitted on October 21, 2020?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The application is dismissed. The applicant has not met his evidentiary burden to establish entitlement to the benefits in dispute. Given that there are no benefits payable, it follows that he is not entitled to interest.

ANALYSIS

4The onus is on the applicant to demonstrate entitlement to the benefits claimed. He made no written submissions and adduced no evidence in support of his claims. Therefore, I find that the applicant has failed to meet his onus.

5Both parties attended the case conference conducted via teleconference on July 15, 2022. The resulting case conference report and order (“CCRO”) set a written hearing to address the issues in dispute listed above.

6Submission dates listed on this CCRO mandated that the applicant’s written submissions and evidence be served on each other and filed with the Tribunal 30 days prior to the scheduled written hearing, with the respondent’s submissions and evidence to follow 14 days prior to the scheduled hearing. Applicant reply submissions, or notice that no reply submissions would be filed, were due seven days before the written hearing date.

7Notice was sent to the parties by the Tribunal on August 12, 2022 that a written hearing had been scheduled for March 31, 2023.

8While the applicant’s representative ostensibly met the deadline for submissions by sending “documents for filing in support” of the hearing to the Tribunal on March 1, 2023, this filing did not contain any written submissions or evidence regarding the matters in dispute. Instead, this PDF document consisted of a letter to opposing counsel making a settlement proposal along with a benefit statement form, a Permission to Disclose Health Information/OCF-5 form, and a Request for Access to Personal Claims History Information form. I note that s. 15(2)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 expressly prohibits this Tribunal from admitting any evidence that is privileged; in this instance, the letter containing a settlement proposal is clearly and presumptively inadmissible by virtue of settlement privilege. In the absence of waiver of privilege from all parties, I cannot and do not admit it for this hearing.

9In submissions dated March 15, 2023, the respondent noted that it had received no written submissions from the applicant and that the applicant had also tendered no evidence in support of his claims to the disputed benefits. As a result, the respondent submitted that the applicant did not meet his onus and that the application should therefore be dismissed.

10The respondent further argued that the applicant must provide all evidence upon which he intends to reply in the first instance and cannot adduce further evidence in reply submissions. It relied on Alcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd 919660, 1966 CanLII 282 (ON CA), [1967] 1 O.R. 18 (ON CA), an Ontario Court of Appeal decision that held “[a] defendant is entitled to know the case which he has to meet when he presents his defence and it is not open to a plaintiff, under the guise of replying, to reconfirm the case which she was required to make out in the first instance rather, she must accept the risk of non-persuasion.”

11On March 28, 2023, the applicant filed reply submissions that included both the documents already sent on March 1, 2023 along with additional evidence. This included a number of documents apparently related to an income replacement benefit (“IRB”) dispute noted as having been withdrawn in the July 15, 2022 CCRO, explanation-of-benefits letters from the insurer, family physician records, medical diagnostic tests, an insurer’s examination (“IE”) psychological assessment report, clinic treatment records, and OCF-18s. No written argument referencing any of the issues in dispute accompanied these documents.

12On March 31, 2023, the respondent objected to the reply submissions. It argued that the applicant’s reply consisted entirely of new evidence and should therefore be either struck from the record or accorded no weight, as “it is well-settled that new evidence as part of a reply is improper and not permitted because a respondent has no opportunity to respond to the evidence at that stage of a proceeding.”

13I agree with the respondent. The applicant’s initial filing for this written hearing did not consist of proper submissions for the written hearing. Apart from the settlement proposal, which I stated above is inadmissible, there were a dozen or so pages of various documents having little to no relation to the issues in dispute. No written argument was provided and no evidence submitted to support the applicant’s claims that the treatment plans should be found to be reasonable and necessary.

14I also accept the respondent’s argument that the applicant’s reply consisted entirely of new evidence. Accordingly, I assign it no weight.

15In any event, the reply submissions do not contain a written argument regarding the issues in dispute. In its place was a one-page cover letter wherein the applicant’s representative disputed the respondent’s assertion that the applicant did not provide initial submissions, noting what was sent on March 1, 2023. The applicant then referenced the “other documents” as “response to the Respondent’s submissions and evidence.” However, as described above, these “other documents” were not a proper reply. Instead, all new evidence was provided here, filed in a similarly irregular fashion to what was sent in initial applicant submissions.

16The applicant cannot expect this Tribunal to sift through the various documents in the hopes that the Tribunal will piece together the applicant’s case for him. To do so would place the Tribunal impermissibly in the role of the applicant’s advocate.

17Given the applicant’s failure to provide written 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

18The applicant has not met his evidentiary burden to establish entitlement to the benefits in dispute.

19As there are no benefits payable, the applicant is not entitled to interest.

20The application is dismissed.