Licence Appeal Tribunal File Number: 21-013917/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:
Isata Kengo
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Yalda Aziz, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Isata Kengo (the “applicant”) was involved in an automobile accident on May 10, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company of Canada (the “respondent”) denied a claim for certain benefits. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are:
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 Minor Injury Guideline limit?
Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from May 10, 2019, to date and ongoing?
Is the applicant entitled to $15,000.00 for lost educational expenses, submitted May 10, 2019, and denied November 11, 2021?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. As the applicant has made no submissions for this hearing, I find that she has not met her evidentiary burden with regard to the issues in dispute.
ANALYSIS
Proceeding in the Absence of One of the Parties
4I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.
5Proceeding 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.
6Both parties participated in a case conference that was held on February 9, 2023. This was the resumption of a case conference adjourned on November 14, 2022 due to the non-attendance of the applicant and her legal counsel. The applicant’s legal counsel also failed to attend the February 9, 2023 case conference. This counsel requested an adjournment in an email to the Tribunal on February 8, 2023 and was informed that same day that a representative of the legal firm was required to attend the case conference to discuss this request.
7As a case conference had already been adjourned once in this matter and because the applicant wanted her application to be heard, the adjudicator proceeded with the case conference and set this matter down for a hearing. A Case Conference Report and Order (“CCRO”) was released on March 4, 2023 detailing the issues in dispute as described above and setting this matter down for a written hearing.
8On March 31, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for November 17, 2023. This NoWH was also mailed at the same time to the applicant’s home mailing address.
9As a result of the timeline established by the CCRO and the NoWH, the applicant’s written submissions were due on October 18, 2023 and the respondent’s written submissions were due on November 3, 2023. The applicant’s reply submissions, if any, were due on November 10, 2023.
10The NoWH also included the provisions that the hearing adjudicator may not consider documents filed after deadlines ordered by the Tribunal, and that the Tribunal may make a decision without the participation of one or both parties if submissions are not filed.
11There is no indication in Tribunal records that either the applicant or her legal representative has filed submissions and evidence in accordance with the dates established in the CCRO and NoWH. There is also no indication in Tribunal records that the applicant or her counsel replied to reminder notices regarding her missing submissions that were emailed to them both by the Tribunal on November 2, 2023 and November 17, 2023.
12There is a notation in Tribunal records of difficulty contacting the applicant’s legal counsel via both phone and email in the months following the case conference on February 9, 2023. An undated note on the file requests that all future notices be sent to the applicant’s address, as the email address of her counsel is undeliverable. This is supported by the respondent’s hearing submissions, where it is noted that the applicant’s counsel did not reply to an email query regarding the status of the application sent on October 25, 2023.
13However, there is no indication that the applicant’s own contact information changed or was otherwise incorrect in Tribunal records. If this changed during the course of the application and differed from what was originally provided to the Tribunal, she had an obligation under Rule 4.4 of this Tribunal’s Rules to provide the correct contact information in writing.
14While I am prepared to provide some latitude to applicants having issues with legal representation, or to those who are proceeding as self-represented, there is no evidence that, as of the date of this decision, the applicant has communicated with the Tribunal in almost a year since the case conference held on February 9, 2023.
15The respondent filed its submissions on November 2, 2023, in accordance with the timeline set in the CCRO and the NoWH.
16Given the above, I am satisfied that the applicant received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. The Tribunal made multiple attempts to contact the applicant and her legal representative regarding the status of this application. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
17For the above reasons, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant Has Not Met Her Burden
18I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Accordingly, she has failed to meet her burden regarding the issues in dispute.
19As held in Scarlett v. Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate that she is entitled to any claimed benefits.
20The applicant failed to meet this onus as she did not file written submissions with the Tribunal in accordance with the timeline established by the CCRO and the NoWH, as noted above. Based on Tribunal records, neither the applicant nor her legal counsel has been in contact with the Tribunal since the case conference on February 9, 2023, whether to file submissions, to provide an explanation for the submissions having not been filed, or to request an extension to the submission deadlines set in the CCRO and NoWH.
21Although it seems apparent from the circumstances detailed above that there has been some interruption in the relationship between the applicant and her legal representation, the applicant has now had almost a year to contact the Tribunal regarding her application. That, to me, is more than adequate a period of time for the applicant to have determined a course of action and to inform the Tribunal regarding how or if she plans to proceed with this application.
22In its submissions, the respondent requests that this application either be dismissed as abandoned due to the lack of communication from the applicant and/or her legal counsel, or that a decision be rendered finding that the applicant has not met her onus because of her failure to file written submissions and evidence.
23I agree that the applicant has not met her onus. Accordingly, this application shall be dismissed.
ORDER
24As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden regarding the issues in dispute.
25The application is dismissed.
Released: February 8, 2024
Brett Todd
Vice-Chair