Barialai v. Aviva Insurance Company, 2023 CanLII 9223

Citation: Barialai v. Aviva Insurance Company, 2023 ONLAT 20-011863/AABS

Licence Appeal Tribunal File Number: 20-011863/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:

Ahmad Barialai

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Inna Zaremba, Paralegal Eric Barapp, Counsel

For the Respondent: Stanford Cummings, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on April 30, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“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?

2. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 30, 2016 to date and ongoing?

3. Is the applicant entitled to assessments proposed by Alliance Diagnostics & Treatments, as follows: i. $1,998.80 for a chronic pain assessment plan dated September 25, 2018? ii. $1,998.80 for an orthopaedic assessment plan dated September 25, 2018?

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

RELIEF

3The application is dismissed. The applicant has not met his evidentiary burden to establish his accident-related impairments fall outside of the minor injury definition in s. 3 of the Schedule. The applicant is not entitled to a non-earner benefit and the proposed assessments are not reasonable and necessary.

ANALYSIS

4The 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.

5A case conference was conducted on May 12, 2021. A written hearing was scheduled for May 16, 2022 and specific written hearing submission deadlines were set.

6According to the Case Conference Report and Order (“CCRO”), the applicant was required to provide initial written submissions by April 8, 2022 and written reply submissions by May 6, 2022.

7The applicant failed to comply with the CCRO and failed to provide any submissions by the deadlines imposed by the Tribunal.

8The respondent provided written submissions by its deadline of April 22, 2022. The submissions were served on the Tribunal and on both applicant paralegal and counsel. The respondent provided a Certificate of Service dated April 22, 2022.

9The Tribunal sent e-mail correspondence to the applicant’s paralegal on April 21, 2022, reminding the applicant of the submission deadline and providing the different methods for serving documents upon the Tribunal.

10A second email correspondence was sent to applicant counsel on June 14, 2022, reminding the applicant that the submission deadline had lapsed and requesting an update.

11No response was received from either applicant paralegal or counsel. More than nine months have now elapsed since the applicant’s initial submission deadline and approximately eight months since the written hearing set for May 16, 2022.

12The applicant has had multiple opportunities to provide submissions, or any procedural update regarding these submissions, and has failed to do so.

13Given 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

14The applicant has not met his evidentiary burden to establish his accident-related impairments fall outside of the Minor Injury Guideline, nor that the treatment is reasonable and necessary pursuant to the Schedule. As a result, he is not entitled to these benefits, nor applicable interest.

15The application is dismissed.