Forbes v. Unifund Assurance Company, 2024 CanLII 10570

Licence Appeal Tribunal

Citation: Forbes v. Unifund Assurance Company, 2024 ONLAT 21-001298/AABS Licence Appeal Tribunal File Number: 21-001298/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:

Lavern Forbes Applicant

and

Unifund Assurance 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

1Lavern Forbes (the "applicant") was involved in an automobile accident on December 24, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Unifund Assurance 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. 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 $2,000.00 for rehabilitation services, proposed by York Medical Centre in a treatment plan/OCF-18 ("plan") dated March 22, 2019?
3. Is the applicant entitled to $2,000.00 for rehabilitation services, proposed by York Medical Centre in a plan dated October 11, 2019?
4. Is the applicant entitled to $2,000.00 for rehabilitation services, proposed by York Medical Centre in a plan dated November 9, 2019?
5. Is the applicant entitled to $2,350.00 for a social work assessment, proposed by York Medical Centre in a plan dated August 12, 2019?
6. Is the applicant entitled to $1,500.00 for a chronic pain functional evaluation, proposed by York Medical Centre in a plan dated August 26, 2019?
7. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by York Medical Centre in a plan dated February 2, 2020?
8. Is the applicant entitled to $200.00 for other goods and services – disability certificate preparation, proposed by York Medical Centre in a plan dated March 26, 2020?
9. 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 she has not met her 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 November 21, 2022. This resulted in the release of a Case Conference Report and Order ("CCRO") on January 27, 2023 that detailed the issues in dispute as noted above and set this matter down for a written hearing.

7On January 31, 2023, the applicant's legal representative emailed notification to the respondent and the Tribunal that the firm was no longer representing the applicant in this matter. This email included the home mailing address and phone number of the applicant.

8On February 16, 2023, the Tribunal emailed a Notice of Written Hearing ("NoWH") to both parties that set the written hearing date for September 22, 2023. A note in Tribunal records indicates that this NoWH was also mailed out directly to the applicant at her home address.

9As a result of the timeline established in the CCRO and the NoWH, the applicant's written submissions were due on August 23, 2023 and the respondent's written submissions were due on September 8, 2023. The applicant's reply submissions, if any, were due on September 15, 2023.

10This 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.

11There is no indication in Tribunal records that either party filed submissions or evidence in accordance with the dates established in the CCRO and NoWH. There is also no indication that either party responded to a reminder email regarding missing hearing submissions that was sent by the Tribunal on September 8, 2023.

12However, both parties replied on January 23, 2024 to further contact attempts made by the Tribunal in December 2023 and January 2024. The applicant was reached by phone and the respondent was reached by email, with both providing updates to the Tribunal that this matter had not been resolved.

13Given the above chronology of events and emails, it is evident that both parties received notification of this hearing. I 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 Her Burden

15I 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.

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 with the Tribunal in accordance with the timeline established by the CCRO and the NoWH, as noted above. The applicant's only contact with the Tribunal during the past year prior to the date of this decision was a phone call on January 23, 2024, during which she informed a Tribunal representative that she had been unable to afford hiring a new lawyer but that she did not want to withdraw her application.

18I sympathize, and am always prepared to provide some added latitude to a self-represented applicant. But in this case the applicant has now been without legal representation for a full year as of this writing, which in my view has been more than sufficient time for her to determine a course of action or at least request an extension of the Tribunal hearing deadlines. That the applicant remains uncertain how to proceed after this length of time forces me to conclude that she does not have any serious intention to proceed with this application.

19Accordingly, this application shall be dismissed.

ORDER

20As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden regarding the issues in dispute.

21The application is dismissed.