Citation: Tu v. Aviva General Insurance, 2024 ONLAT 21-009186/AABS

Licence Appeal Tribunal File Number: 21-009186/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:

Thi Kim C. Tu

Applicant

and

Aviva General Insurance

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

1Thi Kim C. Tu (the “applicant”) was involved in an automobile accident on September 15, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance (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 an income replacement benefit in the amount of $214.52 per week from March 13, 2021 to date and ongoing?

2. Is the applicant entitled to $2,300.56 for physiotherapy, proposed by York Medical in a treatment plan/OCF-18 (“plan”) submitted on July 7, 2021 and denied on July 23, 2021?

3. Is the applicant entitled to $1,700.40 for physiotherapy, proposed by York Medical Centre in a plan submitted on January 23, 2020 and denied on October 7, 2020?

4. Is the applicant entitled to $2,300.56 for physiotherapy, proposed by York Medical Centre in a plan submitted on July 8, 2020 and denied on October 7, 2020?

5. Is the applicant entitled to $2,000.48 for physiotherapy, proposed by York Medical Centre in a plan submitted on April 2, 2020 and denied on April 6, 2020?

6. Is the applicant entitled to $2,300.56 for physiotherapy, proposed by York Medical Centre in a plan submitted on October 14, 2020 and denied on November 25, 2020?

7. Is the applicant entitled to $2,300.56 for physiotherapy, proposed by York Medical Centre in a plan submitted on February 26, 2021 and denied on March 13, 2020?

8. Is the applicant entitled to interest on any overdue payment of benefits?

3This application includes issues originally listed in Tribunal application 22-002381/AABS involving the same applicant and the same subject accident.

RESULT

4The 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 the Parties

5I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.

6Proceeding 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.

7Both parties participated a case conference that was held on October 26, 2022. This resulted in a Case Conference Report and Order (“CCRO”) dated December 12, 2022 that combined two Tribunal applications as noted above and set this matter down for a written hearing.

8On December 29, 2022, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for September 1, 2023. As a result of the CCRO and the NoWH, the applicant’s written submissions were due on August 2, 2023 and the respondent’s written submissions were due on August 18, 2023. The applicant’s reply submissions, if any, were due on August 25, 2023.

9The 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.

10There is no indication in Tribunal records that the applicant filed submissions and evidence in accordance with the Tribunal as of the dates established by the CCRO and the NoWH. There is also no indication in Tribunal records that the applicant contacted the Tribunal at any time following the case conference.

11Further, there is no indication that the applicant’s contact information was incorrect in Tribunal records. If the applicant’s contact information changed, she had an obligation under Rule 4.4 of this Tribunal’s Rules to notify the Tribunal of this in writing.

12The respondent also did not file submissions based on the timeline established by the CCRO and the NoWH. It did, however, file a Notice of Motion with the Tribunal on August 17, 2023 requesting that the application be dismissed as abandoned. This was denied by the Tribunal in a Motion Order dated August 22, 2023, which also confirmed that the written hearing would proceed.

13Given the above, I am satisfied that both 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, and that there were no communication issues between the parties and the Tribunal.

14For 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

15I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. As a result, she has failed to meet her 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 she did not file written submissions or evidence with the Tribunal in accordance with the timeline established by the CCRO and the NoWH as noted above. She also did not file submissions or evidence in the subsequent five months between the hearing date of September 1, 2023 and the date of this decision, nor did she contact the Tribunal with a request for an extension of the submission deadlines.

18Accordingly, this application shall be dismissed.

ORDER

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

20The application is dismissed.