Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-000096/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:
Debra Porter
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
APPEARANCES:
For the Applicant: No submissions
For the Respondent: Katherine Dempsey, Counsel
HEARD: In Writing
OVERVIEW
1Debra Porter, the applicant, was involved in an automobile accident on November 6, 2021, 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, TD 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 August 15, 2023, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for April 26, 2024, with the Notice of Written Hearing e-mailed to the parties on August 24, 2023.
3The applicant’s initial submissions for the substantive issues and responding submissions for the preliminary issue were both due on Mach 27, 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 substantive issues in dispute are:
i. 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?
ii. Is the applicant entitled to $2,569.25 for physiotherapy services from A Med Physiotherapy and Rehabilitation Inc. proposed by Dr. Sean Kerr, chiropractor, in a treatment plan (OCF-18) dated May 19, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
6The preliminary issue in dispute is:
i. Whether the applicant is barred from proceeding with her claim for medical benefits and the application of the Minor Injury Guideline on the ground that the respondent provided the applicant with notice that it requires an examination under s. 44 of the Schedule, but the applicant has not complied with that section?
ANALYSIS
7Section 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.
8The applicant’s representative filed a completed Removal of Representative form prior to the initial submission deadline (submitted October 25, 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.
9By filing a completed Removal of Representative form with the Tribunal, the applicant’s former representative has indicated that they informed the applicant of their withdrawal.
10This withdrawal was also communicated to the applicant via correspondence from the Tribunal (dated November 1, 2023). This e-mail informed the applicant that the written hearing is scheduled for April 26, 2024.
11Finally, I note that the Notice of Written Hearing was provided to the applicant’s former representative several months before the former representative’s removal form was submitted.
12Taken together, I am satisfied that both parties received notice of the written hearing, so I shall proceed without submissions from the applicant.
13The applicant has the onus of demonstrating removal from the Minor Injury Guideline, as well as entitlement to the medical benefit and interest in dispute. By not filing any submissions or evidence with the Tribunal, I find that the applicant has not met this burden.
14I further find that the applicant did not file a Notice of Motion requesting an extension of the initial submission deadline.
15Finally, due to my findings regarding the substantive issues, I find the preliminary issue is moot.
ORDER
16As 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 she demonstrated entitlement to the medical benefit and interest in dispute.
17The preliminary issue is moot.
18The application is dismissed.
Released: November 8, 2024
Craig Mazerolle
Vice-Chair