Licence Appeal Tribunal File Number: 21-013665/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:
Francisca Oseyende
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Lawrence H. Calenti, Counsel
For the Respondent:
Nabila Majidzadeh, Counsel
HEARD:
In Writing
OVERVIEW
1Francisca Oseyende, the applicant, was involved in an automobile accident on February 11, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
- Is the applicant entitled to the treatment plans/OCF-18s, proposed by North Toronto Rehabilitation and Physiotherapy Clinic (“NTRPC”), as follows:
i. $678.31 for chiropractic services in a treatment plan/OCF-18 (“plan”) submitted September 13, 2021, and denied October 14, 2021?
ii. $791.12 for chiropractic services in a treatment plan/OCF-18 submitted October 13, 2021, and denied November 2, 2021?
iii. $1382.24 for chiropractic services in a treatment plan/OCF-18 submitted November 12, 2021, and denied December 20, 2021?
iv. $983.81 for chiropractic services in a treatment plan/OCF-18 submitted December 23, 2021, and denied January 25, 2021?
Is the applicant entitled to $2,734.60 for a physiatry assessment proposed by Access Rehab Inc., in a plan submitted June 9, 2022, and denied July 6, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed.
4The applicant has not met her evidentiary burden to establish entitlement to the treatment plans, assessment or interest.
PROCEDURAL ISSUE
CCRO and Submissions
5Both parties participated in a case conference on November 2, 2022.
6On consent, the case conference report and order (“CCRO”) provided for a written hearing.
7The written hearing was scheduled for September 8, 2023, with the following deadlines:
Applicant’s submissions were due August 9, 2023;
Respondent’s submissions were due August 25, 2023; and
Applicant’s reply submissions were due September 2, 2023.
8The applicant failed to file any submissions on August 8, 2023.
9As anticipated by the CCRO, the respondent filed its submissions on August 24, 2023, stating that the applicant had abandoned her claim.
10Subsequently, the applicant filed submissions on August 31, 2023, outlining the basis for her claims with regard to the issues in dispute.
11The applicant later filed reply submissions, on September 19, 2023, in which she addressed the respondent’s assertion that she had abandoned her claim.
Notice of Written Hearing
12Both parties received a Notice of Written Hearing, dated February 16, 2023. The Notice advised that any documents filed after the deadlines ordered by the Tribunal may not be considered by the adjudicator hearing the matter. Further, it advised that if the parties did not make submissions, the Tribunal may make a decision without their participation, and they would not be entitled to any further notice in the proceeding.
13Thus, the parties were made aware of their obligations with regard to filing submissions for the hearing. They were provided with more than six months notice of such.
The Motion Hearing
14The applicant chose to file a Notice of Motion on September 1, 2023, one day after filing her submissions for this hearing. The Notice of Motion requested that the Tribunal extend the filing deadlines as follows, thereby legitimizing the late-filed submissions:
to August 31, 2023, for the applicant; and
to September 15, 2023, for the respondent.
15The respondent opposed the motion.
16The motion was denied. The Tribunal declined to extend the timelines for submissions, noting that the applicant’s failure to comply with the CCRO was not caused by the Tribunal, but an error on the part of her counsel. Further, the decision outlined how the Tribunal’s process had provided the applicant with ample notice of adjudicative events and the associated filing deadlines.
17Thus, the Tribunal found that responsibility for the late submissions rested solely with the applicant.
Applicant’s Late Submissions – Exclusion from Consideration
18The applicant failed to comply with the orders in the CCRO. Despite having over six months notice of the next adjudicative event – the Written Hearing and accompanying submission deadlines – the applicant failed to file submissions on time.
19The respondent’s case has been prejudiced by the applicant filing her submission on August 31, 2023, more than a week after it filed its own submission on August 24, 2023, in accordance with the agreed upon deadlines. The respondent could only comment on her apparent abandonment of the claim, given that her submissions were absent. Thus, the applicant’s late submissions negatively affected this hearing, by depriving the Tribunal of the respondent’s position on the issues in dispute.
20The parties were informed in the Notice of Written Hearing that the hearing adjudicator may not consider any documents filed after the deadlines ordered by the Tribunal. Further, the applicant confirmed that the Notice was properly received.
21In my view, the Tribunal has offered a fair and fulsome process that meets its obligations with regard to reasonable notice obligations required by ss. 6(1) and 6(4) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”).
22Consequently, I decline to consider any of the applicant’s submissions or adduced evidence, given that they were all filed after the deadline established by the CCRO. I am satisfied that there is no breach of the principles of natural justice or procedural fairness, as the applicant was provided with both ample notice and the opportunity to be heard within the Tribunal’s rules-based process.
ANALYSIS
23I find that the applicant is not entitled to the assessment and treatment plans in dispute.
24To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.
25The applicant had the opportunity to file written submissions and evidence in support of her application. She did not do so by the deadline, and for the reasons outlined above, her submissions and evidence were excluded from consideration. Therefore, there is no evidence before me to allow for an analysis to be undertaken regarding the reasonableness and necessity of the treatment plans in dispute.
26Consequently, the applicant failed to demonstrate that she is entitled to the benefits claimed.
Interest
27As there are no benefits owing, no interest is payable.
ORDER
28The applicant has failed to demonstrate that she is entitled to the benefits claimed or interest.
29The application is dismissed.
Released: February 14, 2024
Bonnie Oakes Charron
Adjudicator