Pendley v. Cooperators General Insurance Company
Licence Appeal Tribunal File Number: 22-012451/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:
Andre Pendley
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
APPEARANCES:
For the Applicant: No submissions
For the Respondent: Peter Durant, Counsel
HEARD: In Writing
OVERVIEW
1Andre Pendley, the applicant, was involved in an automobile accident on November 17, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In a case conference report and order released on July 27, 2023, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for April 12, 2024, with the Notice of Written Hearing e-mailed to the parties on August 3, 2023.
3The applicant’s initial submissions were due on March 13, 2024. The applicant has not provided any written submissions to the Tribunal. There has also been no Notice of Motion filed by the applicant seeking to extend the initial submissions deadline.
4The respondent filed submissions with the Tribunal stating it has not received submissions from the applicant. It is seeking a dismissal of the application.
ISSUES
5As listed in the case conference report and order, the issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 15, 2020 to November 17, 2022?
iii. Is the applicant entitled to psychological services, proposed by Scarborough Medical Centre, as follows: a. $1,995.00 in a treatment plan/OCF-18 (“plan”) dated February 8, 2021 and denied February 22, 2021; and b. $4,089.95 in a plan dated August 20, 2021 and denied August 26, 2021?
iv. Is the applicant entitled to $2,230.08 for physiotherapy services, proposed by Scarborough Medical Centre in a plan dated August 17, 2021 and denied August 26, 2021?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
6Section 7(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 states that, if notice of a written hearing has been given to a party who does not then participate in the hearing in accordance with the notice, the Tribunal may proceed with the hearing in the absence of that party’s participation.
7The applicant’s representative filed a Removal of Representative form prior to the initial submission deadline (submitted October 16, 2023). Rule 24.4 of the Licence Appeal Tribunal Rules, 2023 states that a representative seeking to remove themselves as a party’s representative more than 30 days before the next scheduled adjudicative event must submit a completed Removal of Representative form. According to Rule 24.4, the withdrawing representative:
… must confirm that: a. the party they were representing has been advised of their withdrawal as representative; and b. the representative has complied with the Law Society Act and applicable guidelines and codes of conduct when withdrawing as the party's representative.
8By submitting a completed and signed Removal of Representative form with the Tribunal, the applicant’s former representative has indicated that they informed the applicant of their withdrawal. This withdrawal was also communicated to the applicant via correspondence from the Tribunal (dated October 16, 2023).
9Taken together, I am satisfied that both parties received notice of the written hearing, so I shall proceed without submissions from the applicant.
10The applicant has the onus of demonstrating removal from the Minor Injury Guideline, as well as entitlement to the non-earner benefit, medical benefits, award, and interest in dispute. By not filing any submissions or evidence with the Tribunal, I find that the applicant has not met this burden.
11I further find that the applicant did not file a Notice of Motion requesting an extension of the initial submission deadline.
ORDER
12As the applicant has made no submissions and tendered no evidence in support of the claims before the Tribunal, the applicant has not demonstrated removal from the Minor Injury Guideline, nor has the applicant demonstrated entitlement to the non-earner benefit, medical benefits, award, and interest in dispute.
13The application is dismissed.
Released: October 25, 2024
Craig Mazerolle Vice-Chair