Licence Appeal Tribunal File Number: 21-008757/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:
Irem Corbacioglu
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
No submissions received
For the Respondent:
Heena Kapoor, Counsel
HEARD: In Writing
OVERVIEW
1Irem Corbacioglu, the applicant, was involved in an automobile accident on May 24, 2017, 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, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties participated in a case conference and a written hearing was ordered. To date, the applicant has filed no written submissions for the hearing nor produced any evidence.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2,200 for chronic pain assessment, proposed by Dr. Gupta in a treatment plan/OCF-18 (“plan”) denied on January 11, 2021?
ii. Is the applicant entitled to $4,652.97 for physical therapy, proposed by Polyclinic Rehabilitation Institute Inc in a treatment plan/OCF-18 (“plan”) denied on May 6, 2022?
iii. Is the respondent entitled to costs pursuant to Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”)?
RESULT
4The applicant is not entitled to the treatment plans in dispute. The application is dismissed.
5The respondent is not entitled to costs pursuant to Rule 19.1 of the Rules.
PROCEDURAL ISSUE
6By way of written submissions, the respondent requested that costs be added to the issues in dispute pursuant to Rule 19.1 of the Rules.
7Given that the respondent submitted the request in accordance with the Rules, I have added costs to the issues in dispute.
ANALYSIS
Background
8Both parties attended a Case Conference on August 12, 2022.
9The Case Conference Report and Order, dated September 15, 2022, set out the deadlines for written submissions and evidence.
10On September 23, 2022, the Tribunal sent both parties a Notice of Written Hearing. A written hearing was scheduled for June 16, 2023 - later changed to May 19, 2023.
11The applicant did not comply with the Tribunal’s Order to exchange productions 45 days prior to the hearing. The respondent complied with the Order.
12The applicant did not comply with the Tribunal’s Order to file written submissions and evidence 30 days prior to the hearing. The respondent complied with the Order.
13The applicant did not exchange productions nor file written submissions at any time.
14The respondent requested that the Tribunal dismiss the application and award $2,000 in costs given the behaviour of the applicant who failed to:
i. exchange productions;
ii. file written submissions and evidence; and/or
iii. provide any explanation or communication to either the respondent or the Tribunal for the lack of participation.
15Nor did the applicant withdraw the appeal.
The Treatment Plans
16I find that the applicant is not entitled to the assessment and treatment plans in dispute.
17To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.
18The applicant had the opportunity to file written submissions and evidence in support of her application. She did not do so.
19Therefore, the applicant failed to demonstrate that she is entitled to the benefits claimed.
Costs
20I decline to award costs to the respondent.
21Rule 19.1 of the Rules allows the Tribunal to award costs when a party’s conduct has been unreasonable, frivolous, vexatious, or in bad faith.
22Despite having legal representation, the applicant failed to comply with the Tribunal’s Orders. No reasons were provided to the Tribunal nor the respondent for this non-compliance and lack of participation.
23However, the test for costs remains a very high bar and should only be ordered where there is no other reasonable means of addressing misconduct. Although the applicant is in non-compliance with the Tribunal’s Orders, neither did she withdraw the application. The matter proceeded to a decision.
24I find that the dismissal of the application in and of itself effectively addresses any unreasonable behaviour on the part of the applicant. A further award of costs is unnecessary.
ORDER
25The applicant has failed to demonstrate that she is entitled to the benefits claimed.
26The respondent is not entitled to costs.
27The application is dismissed.
Released: October 17, 2023
Bonnie Oakes Charron
Adjudicator