Licence Appeal Tribunal File Number: 20-012349/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:
Mildred (Mary) Cunningham
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Julia Fogarty
APPEARANCES:
For the Applicant: Mildred (Mary) Cunningham, Applicant, did not attend
For the Respondent: Natasha Richards, AB Specialist Melinda Baxter, Counsel
Court Reporter: Nikita Ivachtchenko
Heard by Videoconference: December 11, 2023
OVERVIEW
1Mildred (Mary) Cunningham, the applicant, was involved in an automobile accident on June 16, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A four-day hearing was scheduled to take place virtually on December 11, 2023. The applicant was provided notice by both the Tribunal and directly by registered mail from the respondent enclosing a further copy of the notice of the attendance, but did not appear at today’s appearance nor any of the other appearances before the Tribunal.
3At today’s hearing when the applicant did not appear by 30 minutes after the hearing was scheduled to commence, we proceeded to conduct the hearing in the applicant’s absence pursuant to rule 3.7.1(a)-(b) of the Licence Appeal Tribunal Rules, 2023.
4The onus was on the applicant to prove her claims. Since the applicant did not attend, nor did she call any evidence or make any submissions, she did not meet the burden of proof to establish entitlement to any of the issues in dispute.
5The application before the Tribunal is dismissed and the applicant is ordered to pay the sum of $1,000.00 to the respondent for the costs of today’s appearance.
ISSUES
6The issues in dispute are:
i. Is the applicant entitled to attendant care benefits in the amount of $1,123.37 per month from June 16, 2010 to date and ongoing?
ii. Is the applicant entitled to $2,486.00 for an attendant care benefit assessment proposed by Total Healthcare Solutions in a treatment plan submitted May 2, 2017 and denied May 18, 2017?
iii. Is the applicant entitled to assessments by Verity Medical Assessments set out in treatment plans, as follows:
$2,200.00 for a neurological assessment, submitted January 30, 2017 and denied May 18, 2017; and
$2,200.00 for an orthopaedic assessment, submitted January 30, 2017 and denied July 17, 2017?
iv. Is the applicant entitled to assessments by Shoreham Chronic Pain and Assessment Centre set out in treatment plans, as follows:
$1,997.27 for a vocational assessment, submitted May 29, 2017; and
$1,250.00 for a transferrable skills assessment, submitted June 8, 2017 and denied June 22, 2017?
v. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the insurer entitled to the costs of today’s appearance due to conduct of the applicant?
RESULT
7The application is dismissed.
8The applicant shall pay the sum of $1,000.00 to the respondent for the costs of today’s appearance.
ANALYSIS
9To proceed in absentia the parties shall be given reasonable notice of the hearing by the Tribunal.1 Notice shall include the time, place and purpose of the hearing as well as a statement that if the party does not attend the hearing the Tribunal may proceed in the party’s absence and the party will not be entitled to any further notice in the proceeding.2 The applicant was provided with proper notice of the hearing, as follows:
i. The respondent notified the applicant by registered mail enclosing the Tribunal’s notice of hearing on November 13, 2023; and
ii. The Tribunal made various efforts to contact the applicant, however, the applicant did not provide accurate telephone or electronic means of contact. The Tribunal then sent a further notice by registered mail with all the hearing details on December 8, 2023 when none of the other methods of contact received a response.
10The applicant presented no evidence, made no submissions and did not meet the burden of proof to establish entitlement to any of the issues in dispute.
Interest
11As there are no benefits payable to the applicant there is no interest owed.
Award
12As the applicant presented no evidence, she has not met the burden of proof to establish entitlement to any award.
Costs
13At the end of the hearing the respondent made submissions on costs for today’s appearance citing cases Timar v. Aviva, 2023 CanLII 26949 and Ahmed v. Economical, 2023 CanLII 50618 as authority under the caselaw to grant their request for $1,000.00 in costs against the applicant.
14Pursuant to rule 19.5 of the Licence Appeal Tribunal Rules I am able to consider the conduct of the applicant as it relates to the following factors:
i. The seriousness of the misconduct:
a. Here, the applicant has either abandoned or completely disregarded the Tribunal’s rules by failing to appear and by failing to respond to any communications or orders made by the Tribunal. I find this to be serious misconduct.
ii. Whether the conduct was in breach of a direction or order issued by the Tribunal:
a. The applicant has not complied with any Tribunal orders.
b. The applicant has not attended any appearances with the Tribunal.
iii. Whether or not the party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process:
a. The Tribunal has afforded time and resources to this matter which could have been better allocated to a party actively participating in the process.
iv. Prejudice to the other parties:
a. The respondent is prejudiced by the increased costs involved in multiple appearances and hearings due to the non-attendance of the applicant.
b. The significant delays caused by the applicant leave the respondent open to liability for an extensive period. The respondent as well as the applicant are entitled to some certainty as so to how and when they can expect to proceed.
v. Potential impact an order for costs would have on an individual accessing the Tribunal system:
a. The applicant’s behaviour is egregious and not the typical behaviour of an applicant seeking access to the Tribunal. It does not set an uncompromising precedent against people thoughtfully and diligently pursuing their claims to have costs awarded against a party who completely disregards the process.
b. The multiple non-attendances of the applicant at appearances before the Tribunal additionally wasted public resources that could have been allotted to another party thoughtfully and diligently pursuing their claim for benefits.
15In line with rule 19.5 of the Licence Appeal Tribunal Rules, 2023 to substantiate their position, the respondent cited the following facts:
i. This was a lengthy delayed process. The accident took place in 2010 and this application was filed with the Tribunal on October 21, 2020. It is now December 11, 2023.
ii. The applicant has never attended any appearances.
iii. The case conference was adjourned three times.
iv. The applicant did not attend the recent motion.
v. The hearing in May 2023 was adjourned because applicant’s legal representative removed themselves as counsel of record.
vi. The hearing in August 2023 was adjourned because the applicant did not attend and the Tribunal did not feel notice had been properly provided of the appearance.
vii. The applicant was properly notified of today’s appearance both by registered mail from the respondent on November 13, 2023 and a second registered letter by the Tribunal.
viii. The applicant is in breach of a number of orders and appearances.
ix. The applicant has not responded to production orders or the orders to provide a hearing brief.
x. The respondent is only seeking costs for today’s appearance despite the rule providing that they could seek costs for all the missed appearances leading up to the hearing as well.
16Pursuant to rule 19 of the Licence Appeal Tribunal Rules I am able to award costs up to $1,000.00 per each full day attendance at a motion, case conference or hearing.
17The respondent has requested $1,000.00 for today’s appearance. The respondent has met the burden to show entitlement to costs.
18The applicant shall pay the respondent $1,000.00 of costs for today’s appearance.
ORDER
19The applicant’s application is dismissed.
20The applicant shall pay the sum of $1,000.00 to the respondent for the costs of today’s appearance.
Released: February 7, 2024
Julia Fogarty Adjudicator