Ge-Michael v. Aviva General Insurance Company, 2023 CanLII 93017

Citation: Ge-Michael v. Aviva General Insurance Company, 2023 ONLAT 21-011176/AABS

Licence Appeal Tribunal File Number: 21-011176/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:

Selemon Ge-Michael

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: No One Appearing

For the Respondent: Samuel Davies, Counsel

HEARD: By way of written submissions

OVERVIEW

1Selemon Ge-Michael (the “applicant”) was involved in an automobile accident on August 31, 2018, 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”) held the applicant within the Minor Injury Guideline (“MIG”) and denied two treatment plans and interest. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2Tribunal file 21-009017/AABS is related to this matter, as it involves the partner of this applicant and the same subject accident. I note this primarily because Tribunal records and notes regarding the timeline of events and notification efforts listed below are intertwined, with references on both files that reference both applications.

ISSUES

3The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in Section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?
2. Is the applicant entitled to $651.74 for “outstanding therapy” owed to Om Sai Physiotherapy?

4NOTE: Issues #2, #4, and #5 as listed on the case conference report and order (“CCRO”) dated June 30, 2022 were noted by the respondent in submissions as having been settled after the case conference. In the absence of submissions to the contrary from the applicant, I accept that these issues have been resolved.

RESULT

5The application is dismissed. As the applicant has made no submissions for this hearing, I find that he has not met his evidentiary burden with regard to the MIG determination, nor has he established entitlement to the issue in dispute.

ANALYSIS

6Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.

7First, I find that the applicant received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that the applicant did not request a change of format from a written hearing under s. 6(4)(b) of the SPPA. Therefore, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.

8In short, the Tribunal met its reasonable notice obligations. The Tribunal sent notice to the applicant on July 22, 2022 that a written hearing date had been set for March 24, 2023. This was the result of a case conference held on this matter on June 28, 2022, which the applicant attended. The resulting CCRO, dated June 30, 2022, specified that applicant submissions were to be filed 30 days prior to the scheduled hearing, with respondent submissions due 14 days prior to the hearing, and applicant reply submissions due 7 days prior to the hearing.

9Further, the Tribunal provided the applicant two additional months to provide submissions and/or secure new legal representation. His legal firm withdrew and notified the Tribunal on January 20, 2022, which resulted in later Tribunal concern about notice. On March 13, 2023, the Tribunal rescheduled the written hearing for May 26, 2023, and sent email notification to the applicant, which included the CCRO. (For the same reasons, the Tribunal moved the written hearing for 21-009017/AABS to that date as well.)

10The Tribunal also phoned the applicant on March 15, 2023 to inquire if the applicant’s home address needed to be updated and left a message to this effect. While there is no note on the file to indicate that the applicant responded, the Tribunal mailed notice of this new hearing date and the CCRO to the address on file as of March 22, 2023.

11Tribunal notes for both this file and 21-009017/AABS record that the Tribunal attempted to contact the applicant by phone on other occasions as well. On June 22, 2022, the Tribunal spoke to the applicant to confirm his email address and that of his partner, to ensure that notice of the upcoming case conference was provided to them both, as they were still unrepresented by counsel.

12Other Tribunal attempts to contact the applicants via phone in both 2022 and 2023 were unsuccessful, in that the applicants did not answer and did not return messages. There is no notation on either file indicating any difficulties with the applicant’s phone number, mailing address, or email address.

13As a result, it is clear that the Tribunal met the reasonable notice requirements of ss. 6(1) and 6(4) of the SPPA and made the applicant aware of his obligations for the written hearing on at least one occasion, if not two.

14Second, I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. As held in Scarlett v. Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate entitlement to removal from the MIG and any claimed benefits.

15The applicant failed to provide any submissions, for either the original March 24, 2023 hearing date or the May 26, 2023 hearing date. The applicant further failed to respond to any of the notices and messages described above. The applicant also did not reply to emails sent by the Tribunal on March 28, 2023 and June 6, 2023 inquiring if he and his partner were seeking legal representation, were intending to proceed to the hearings as self-represented and would be filing submissions, or would be withdrawing one or both applications.

16The respondent provided its hearing submissions on March 10, 2023, in agreement with the provisions established in the June 30, 2022 CCRO and the original hearing date set for March 23, 2023. These submissions included a request that the applicant be found to have abandoned this proceeding due to his failure to provide submissions. The respondent also provided a response to the MIG determination and single issue in dispute. It argued that the applicant had not provided submissions to substantiate his MIG claim and that the lone issue involving an “outstanding account” had not been proven to be connected to a treatment plan, so the latter was not within the Tribunal’s sphere of jurisdiction.

17Further, the respondent requested that the applicant’s claim to be outside of the MIG should be dismissed for two reasons—because the applicant does not meet his evidentiary burden due to his failure to provide any submissions, and because when the single issue in dispute is removed, this leaves the MIG as a standalone issue that the Tribunal does not have the authority to address.

18For the above reasons, I find that the applicant has failed to meet his burden. Despite numerous opportunities over the span of roughly 17 months in total, the applicant failed to file any submissions. By my view, this was sufficient time for the applicant to decide on a course of action. Although he was without legal representation for this entire period of time, his law firm sent notice of withdrawal on January 20, 2022—five months before this matter even proceeded to a case conference (which, as noted above, he attended). The applicant had time to secure new representation, prepare submissions if he chose to represent himself, or make a request to the Tribunal to extend deadlines for submissions or reschedule hearing dates. He did not choose any of these options, and further, did not contact the Tribunal or reply to numerous notices and phone calls, as noted above.

19Given the applicant’s failure to provide submissions, it is clear that he has not met his evidentiary burden with regard to the issues in dispute.

20As my findings regarding the applicant’s failure to meet his evidentiary burden result in the dismissal of this application, I do not need to rule on the “outstanding account” issue, nor the issue of whether the Tribunal has jurisdiction over the MIG, both of which were advanced by the respondent in submissions.

21Accordingly, this application shall be dismissed.

ORDER

22As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden.

23The application is dismissed.