Lori Brinson v. Royal Sun Alliance Insurance (RSA), 2024 CanLII 10561

Citation: Brinson v. Royal Sun Alliance Insurance (RSA), 2024 ONLAT 22-004232/AABS

Licence Appeal Tribunal File Number: 22-004232/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:

Lori Brinson

Applicant

and

Royal Sun Alliance Insurance (RSA)

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: No Submissions Filed

For the Respondent: Susana Cardoso, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lori Brinson (the “applicant”) was involved in an automobile accident on February 20, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Royal Sun Alliance Insurance (RSA) (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

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 $2,627.99 for psychological services, proposed by Med Assessments in a treatment plan/OCF-18 dated June 11, 2021?
3. Is the applicant entitled to $2,442.60 for chiropractic services, proposed by Natural Touch Rehabilitation Center in a treatment plan/OCF-18 dated June 7, 2021?
4. Is the applicant entitled to interest on any overdue payment of benefits?
5. Is the applicant liable to pay costs of $1,500.00 to the respondent?

3In submissions, the respondent added the above request for costs. As Rule 19.2 of the Tribunal’s Rules allows a party to make a request for costs in writing or orally at a case conference or hearing at any time before a decision or order is released, I have added it to the list of items in dispute.

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.

5The applicant is not liable to pay costs to the respondent.

ANALYSIS

Proceeding in the Absence of the Parties

6I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.

7Proceeding 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.

8Both parties participated in a case conference that was held on January 27, 2023. This resulted in a Case Conference Report and Order (“CCRO”) dated February 23, 2023 that set this matter down for a written hearing.

9On May 5, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for November 3, 2023. As a result of the timeline established in the CCRO and the NoWH, the applicant’s written submissions were due on October 4, 2023 and the respondent’s written submissions were due on October 20, 2023. The applicant’s reply submissions, if any, were due on October 27, 2023.

10The 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.

11While the applicant filed a book of evidentiary documents with the Tribunal on September 19, 2023, there is no indication in Tribunal records that the applicant filed written submissions and evidence in accordance with the dates established by the CCRO and the NoWH. There is also no indication in Tribunal records that the applicant replied to Tribunal contact attempts on October 20, 2023 and November 9, 2023 regarding these missing submissions, nor that she contacted the Tribunal to request an extension of hearing submission deadlines.

12Further, there is no indication that the applicant’s contact information was incorrect in Tribunal records. If this changed during the course of the application, she had an obligation under Rule 4.4 of this Tribunal’s Rules to provide the correct contact information to the Tribunal in writing.

13The respondent filed its submissions on October 20, 2023, in accordance with the timeline set in the CCRO and the NoWH.

14Given 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 Tribunal and the applicant.

15For 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

16I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Accordingly, she has failed to meet her burden regarding the issues in dispute.

17As 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.

18The applicant failed to meet this onus as she did not file written submissions with the Tribunal in accordance with the timeline established by the CCRO and the NoWH, as noted above. The book of documents that the applicant filed with the Tribunal on September 19, 2023 is insufficient without an accompanying written argument.

19The applicant also did not file submissions or evidence in the subsequent three months between the hearing date of November 3, 2023 and the date of this decision, nor did she contact the Tribunal with a request for an extension of the submission deadlines.

20Accordingly, this application shall be dismissed.

Costs

21I find that the applicant is not liable to pay costs to the respondent.

22Costs are a discretionary remedy that the Tribunal may impose when it is determined that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, pursuit to Rule 19.1 of the Rules and s. 17.1 of the SPPA.

23Here, the respondent requests costs of $1,500.00 (half of the $3,000.00 that it claims or have been incurred to act in this proceeding) from the applicant “due to abuse of process.” It submits that the conduct of the “applicant’s counsel” is frivolous, vexatious, or otherwise in bad faith by not complying with a Tribunal order and providing submissions for this hearing, which has “unnecessarily burdened the system and [taken] a hearing date from another applicant in the pool.”

24I do not agree that the applicant’s conduct rises to the level where costs would be warranted, in accordance with the criteria as established in Rule 19.5.

25In my view, the applicant can only be faulted here for failing to file submissions, which is not demonstrably unreasonable, frivolous, vexatious, or in bad faith. Nor did her failure to provide submissions interfere with the Tribunal’s ability to carry out a fair, efficient, and effective process. Lastly, awarding costs for failing to file submissions could have a significantly negative impact on individuals accessing the Tribunal system.

26For the above reasons, the applicant is not liable to pay costs to the respondent.

ORDER

27As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden regarding the issues in dispute.

28The applicant is not liable to pay costs to the respondent.

29The application is dismissed.