Nguyen v. Aviva Insurance Company, 2024 CanLII 10549

Citation: Nguyen v. Aviva Insurance Company, 2024 ONLAT 22-004515/AABS

Licence Appeal Tribunal File Number: 22-004515/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:

Ban Nguyen

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: No Submissions Filed

For the Respondent: No Submissions Filed

HEARD: By way of written submissions

OVERVIEW

1Ban Nguyen (the “applicant”) was involved in an automobile accident on February 29, 2020 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 (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. Is the applicant entitled to $1,250.28 for chiropractic services, proposed by Pain Rehabilitation Clinic Inc. in a treatment plan/OCF-18 (“plan”) dated April 29, 2020?
2. Is the applicant entitled to $3,200.80 for chiropractic services, proposed by Pain Rehabilitation Clinic Inc. in a treatment plan/OCF-18 (“plan”) dated May 22, 2020?
3. 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 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 (the “SPPA”), requires the Tribunal to be satisfied that the absent party or parties 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. This resulted in the release of a Case Conference Report and Order (“CCRO”) on March 1, 2023 that detailed the issues in dispute as noted above and set this matter down for a written hearing.

7On 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.

8As a result of the timeline established in 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.

9This 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.

10The applicant did not file submissions in accordance with the dates established in the CCRO and NoWH. There is also no indication in Tribunal records that the applicant responded to a reminder email about these missing submissions that was sent by the Tribunal on November 6, 2023.

11There is no indication that the applicant’s contact information changed or was otherwise 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 in writing.

12The respondent also did not file submissions or evidence. However, the respondent did file a Notice of Motion (“NoM”) seeking the dismissal of this application on November 6, 2023.

13I am satisfied that the parties received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.

14For 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

15I 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.

16As 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.

17The 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. He also did not file submissions or evidence in the three months between the hearing date of November 17, 2023 and the date of this decision, nor did he contact the Tribunal with a request for an extension of the submission deadlines.

18The respondent sent an email to the Tribunal and the applicant on November 1, 2023 seeking the dismissal of this application with prejudice due to the applicant’s failure to serve submissions by the date as established in the CCRO and NoWH. The respondent then filed an NoM on November 6, 2023 requesting the same relief. This motion was scheduled by the Tribunal in a Motion Order dated November 7, 2023 to be heard with the substantive matters at the written hearing.

19The applicant failed to file a response to this Motion Order, which held that such submissions were due by November 14, 2023.

20I agree with the respondent. Accordingly, this application shall be dismissed.

ORDER

21As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.

22The application is dismissed.