Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-011969/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:
Rochelle Hamlet
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant: Rochelle Hamlet, Applicant, (Self-represented)
For the Respondent: Rajesan Rajendran, Counsel
HEARD: By way of written submissions
OVERVIEW
1Rochelle Hamlet, the applicant, was involved in an automobile accident on June 21, 2019, 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 Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $2013.85 for physiotherapy services, proposed by Health Bound Health Network in a treatment plan dated October 10, 2019?
ii. Is the applicant entitled to $2060.88 for physiotherapy services, proposed by Health Bound Health Network in a treatment plan dated January 7, 2020?
iii. Is the applicant entitled to $14,029.19 for medical services proposed by Excel Medical Diagnostics in a treatment plan dated September 21, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. The applicant has not met her evidentiary burden to establish her entitlement to the benefits in dispute. Given there are no benefits payable, she is not entitled to applicable interest.
ANALYSIS
4Proceeding 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.
5The applicant’s legal representative filed a notice of motion on May 17, 2023, seeking to be removed as the legal representative of record. The applicant sought an adjournment of the written hearing to allow time to retain a new legal representative. The motion by the applicant’s legal representative to be removed as legal representative of record, was granted by the Tribunal on May 18, 2023. The applicant’s motion for an adjournment was denied pending the applicant being required to file a request for an adjournment form. The applicant was instructed to advise the Tribunal as soon as possible when she retained a new legal representative or to file a request for an adjournment form.
6On June 5, 2023, the Tribunal Registrar emailed the applicant inquiring if she had retained a new legal representative or if she intended to file written submissions and evidence in conformity with the scheduled written hearing as the date for her evidence and submissions had passed. The applicant did not respond to the email. The Tribunal Registrar sent a follow-up email to the applicant on June 25, 2023, when the applicant did not respond to the email of June 5, 2023. The applicant did not respond until June 28, 2023, stating that she had not located a legal representative and she requested the written hearing be re-scheduled without filing an adjournment request form.
7The Tribunal made clear on May 18, 2023, when denying the adjournment request by the applicant that she was required to advise whether she was retaining new counsel or make the adjournment request by filing an adjournment request form. She did not take any steps knowing the requirement to file evidence and submissions was due by May 31, 2023. The applicant also failed to comply with the production order of the Tribunal rendered at the case conference to provide the requested documentary evidence to the respondent.
8The onus is on the applicant to demonstrate that she is entitled to the benefits claimed. She made no submissions and tendered no evidence in support of her claims before the Tribunal. Therefore, I find that the applicant has failed to meet her onus and I dismiss the application.
9Both parties were in attendance at the case conference conducted on September 13, 2022, where the matter was determined on consent to proceed by way of a written hearing, on a date to be set by the Tribunal. The parties canvassed outstanding productions and agreed to the exchange no later than 45 calendar days from the case conference. The applicant agreed to produce an updated OHIP summary, updated clinical notes and records from medical providers, and from treatment facilities and assessment centres. It was agreed that the parties would disclose any items remaining undisclosed, responsive to items already produced, no later than 75 calendar days after the case conference.
10The applicant has failed to meet the production deadlines for the disclosure of the items required to be exchanged with the respondent in conformity with the Tribunal case conference report and order.
11A written hearing was scheduled by the Tribunal for June 30, 2023, by way of a notice dated December 15, 2022. The case conference report and order, set forth the schedule for written submissions and evidence to be filed with the Tribunal, according to a timetable with the applicant required to file her submissions and evidence 30 days prior to the scheduled written hearing date by May 31, 2023; the respondent to file materials 14 days prior to the written hearing date or by June 14, 2023; and with the applicant filing a reply 7 days prior to the written hearing date or by June 22, 2023.
12The claim fails on a balance of probabilities because there have been no submissions or evidence filed by the applicant, therefore, the applicant has not met her burden. The respondent references Rule 3.4(a) of the Common Rules of Practice and Procedure (the “Rules”) which permits the Tribunal to dismiss proceedings when they are frivolous, vexatious, commenced in bad faith, or otherwise an abuse of process. The respondent also refers to Rule 3.4(d) of the Rules which allows the Tribunal to dismiss proceedings where the applicant abandoned the proceedings. In the absence of documentary evidence and supporting submissions, the applicant cannot meet the burden to prove entitlement to disputed benefits.
13The respondent submits that to date the applicant has not exchanged nor filed with the Tribunal written submissions and documentary evidence despite the passage of time since the case conference and well past notice of the written hearing. The respondent submits that by failing to provide requested productions, or evidence best efforts have been made to obtain the requested productions, the applicant has denied the respondent the opportunity to review all relevant medical records, without explanation. The respondent submits that its ability to address the case is prejudiced by the applicant’s failure to meet production orders and file evidence and submissions. The respondent submits that if the applicant is permitted to file documentary evidence in the future, the respondent would have no opportunity to respond, which would effectively reverse the onus on the applicant whose burden it is to prove a claim for automobile accident benefits.
14The applicant has not served any submissions and evidence in compliance with the order of the Tribunal rendered on September 13, 2022, for the purpose of the written hearing. The applicant has not communicated with the Tribunal for the purpose of addressing the failure to tender submissions and evidence in support of her claims before the Tribunal to date.
15Four months have now elapsed since the written submissions deadline and the hearing set for June 30, 2023. The applicant has been afforded ample time to file submissions and evidence, and she has failed to do so.
16Given the applicant’s failure to provide any hearing submissions or evidence, it is clear the applicant has not met her evidentiary burden with regard to the issues in dispute. This application shall be dismissed.
ORDER
17The applicant has not met her evidentiary burden to establish her entitlement to the benefits in dispute.
18Given there are no benefits payable, the applicant is not entitled to applicable interest.
19The application is dismissed.
Released: February 2, 2024
Janet Rowsell
Adjudicator