Sivasundaram v. Certas Home and Auto Insurance Company, 2024 CanLII 10543

Citation: Sivasundaram v. Certas Home and Auto Insurance Company, 2024 ONLAT 22-005535/AABS

Licence Appeal Tribunal File Number: 22-005535/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:

Jananthan Sivasundaram

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: No Submissions Filed

For the Respondent: Ayda Choupani, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jananthan Sivasundaram (the “applicant”) was involved in an automobile accident on May 15, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Certas Home and Auto Insurance Company (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:

1. 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?
2. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Dr. Michael Gofeld in a treatment plan/OCF-18 dated April 25, 2022?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. 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 he has not met his 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 14, 2023. A Case Conference Report and Order (“CCRO”) was released on March 1, 2023 detailing the issues in dispute as described above and setting this matter down for a written hearing.

7On April 3, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for November 24, 2023. As a result of the timeline established by the CCRO and the NoWH, the applicant’s written submissions were due on October 25, 2023 and the respondent’s written submissions were due on November 10, 2023. The applicant’s reply submissions, if any, were due on November 7, 2023.

8The 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.

9There is no indication in Tribunal records that the applicant 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 his counsel replied to a reminder notice regarding his missing submissions that was emailed to him by the Tribunal on November 7, 2023, or that the applicant contacted the Tribunal with a request for an extension of hearing submission deadlines.

10In addition, there is no indication that the applicant’s contact information was incorrect in Tribunal records. If this changed during the course of the application, the applicant had an obligation under Rule 4.4 of this Tribunal’s Rules to provide the correct contact information to the Tribunal in writing.

11The respondent filed its submissions on November 10, 2023, in accordance with the timeline set in the CCRO and the NoWH.

12Given 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 attempts to contact the applicant 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.

13For the above reasons, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.

The Applicant Has Not Met His Burden

14I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Accordingly, he has failed to meet his burden regarding the issues in dispute.

15As 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.

16The applicant failed to meet this onus as he did not file written submissions with the Tribunal in accordance with the timeline established by the CCRO and the NoWH, as noted above.

17In its submissions, the respondent requests that this application be dismissed as the applicant has not met his onus due to his failure to file written submissions and evidence.

18I agree that the applicant has not met his onus. Accordingly, this application shall be dismissed.

ORDER

19As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.

20The application is dismissed.