Thiruchelvam v. Aviva General Insurance, 2024 CanLII 10568

Citation: Thiruchelvam v. Aviva General Insurance, 2024 ONLAT 22-004723/AABS

Licence Appeal Tribunal File Number: 22-004723/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:

Selvy Thiruchelvam

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: No Submissions Filed

For the Respondent: Frank Comella, Counsel

HEARD: By way of written submissions

OVERVIEW

1Selvy Thiruchelvam (the “applicant”) was involved in an automobile accident on September 5, 2021 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. 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 (“MIG”) limit?
2. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 14, 2022 to June 6, 2022?
3. Is the applicant entitled to $975.00 ($1,950.00 less $975.00 approved) for physiotherapy services, proposed by New Sport Rehabilitation in a treatment plan/OCF-18 submitted December 21, 2021 and denied February 20, 2022?
4. Is the applicant entitled to interest on any overdue payment of benefits?
5. Is the applicant liable to pay costs 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 One 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 a case conference that was held on February 16, 2023. This resulted in the release of a Case Conference Report and Order (“CCRO”) on March 2, 2023 that detailed the issues in dispute as noted above and set this matter down for a written hearing.

9On 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.

10As a result of the timeline established in 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 17, 2023.

11This 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.

12There is no indication in Tribunal records that the applicant filed initial written submissions and evidence in accordance with the dates established by the CCRO and the NoWH. The applicant did file reply submissions on November 23, 2023, although virtually of this document involves allegations directed at the respondent regarding a possible partial resolution of the issues in dispute.

13The applicant continued to fail to provide her initial hearing submissions and evidence despite two reminder notices from the Tribunal that were sent on November 16, 2023 and December 5, 2023. Instead, the applicant advised on November 16, 2023 that issues #1 and #3 as listed on the CCRO had been resolved. These items were not withdrawn by Tribunal Motion Order, however, and there is some indication in the submissions of both parties that these issues have not been fully resolved. As a result, I have not removed them from the list of items in dispute before me.

14Given the above chronology of events and emails, it is self-evident that the applicant was notified of this hearing.

15The respondent filed its submissions on November 16, 2023, in accordance with the timeline set in the CCRO and the NoWH.

16Given 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.

17I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.

18For 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

19I 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.

20As 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.

21The 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. Merely filing written reply submissions that fail to refer to the substantive merits of the applicant’s claims and do not include evidence is insufficient to demonstrate that removal from the MIG is warranted or to establish entitlement to IRB and the treatment plan in dispute here.

22In its written submissions, the respondent commented on a potential partial resolution of the issues in dispute and made allegations in a similar fashion to what the applicant referenced in her reply submissions, as noted above. The respondent also noted the missing submissions of the applicant. It requested that this application be dismissed, as the applicant’s failure to provide submissions and evidence meant that she did not discharge the burden of proving her case.

23I agree with the respondent. Accordingly, this application shall be dismissed.

Costs

24I find that the applicant is not liable to pay costs to the respondent.

25Costs 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.

26Here, the respondent submits that it has incurred significant costs defending this matter and has suffered prejudice due to the applicant’s failure to comply with Tribunal-imposed deadlines. It argues that it should be “entitled to its costs of responding to this proceeding on a substantial indemnity basis.”

27I do not agree. In my view, the applicant can only be faulted for failing to file submissions, which is not demonstrably unreasonable, frivolous, vexatious, or in bad faith in line with the criteria established in Rule 19.5. Her failure to provide submissions also did not interfere with the Tribunal’s ability to carry out a fair, efficient, and effective process. Lastly, awarding costs for failing to file submissions could negatively impact individuals accessing the Tribunal system.

28In addition, the respondent’s request for costs does not satisfy Rule 19.3, which establishes that any party making such a submission shall set out the amount being requested. Also, the respondent has not satisfied the provisions of Rule 19.4, in that it did not document the particulars of the other party’s conduct alleged to be unreasonable, frivolous, vexatious, or in bad faith.

29As a result, the applicant is not liable to pay costs to the respondent.

ORDER

30As the applicant has failed to provide submissions, it follows that she has not met her evidentiary burden regarding the issues in dispute.

31The applicant is not liable to pay costs to the respondent.

32The application is dismissed.