Adam v. Aviva Insurance Company of Canada
Licence Appeal Tribunal File Number: 22-014183/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:
Jamela Adam
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
WRITTEN SUBMISSIONS:
Applicant: No submissions
Respondent: Rajesan Rajendran, Counsel
HEARD: In Writing
OVERVIEW
1Jamela Adam, the applicant, was involved in an automobile accident on May 12, 2017, 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 of Canada, 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 4, 2023, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for April 19, 2024, with the Notice of Written Hearing e-mailed to the parties on August 10, 2023.
3The applicant’s initial submissions were due on March 11, 2024. The applicant has not provided written submissions to the Tribunal. There has also been no Notice of Motion seeking to extend the initial submissions deadline.
4The respondent filed submissions with the Tribunal, seeking a dismissal of the application. It is also seeking costs in the amount of $2,000.00.
ISSUES
5As listed in the case conference report and order (and then amended by the motion order, released September 12, 2023), the issues in dispute are:
i. Is the applicant entitled to $2,000.00 for psychovocational assessment, proposed by Novo Medical Services Inc. in a treatment plan/OCF-18 (“plan”) submitted October 6, 2020, and denied March 5, 2020?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. 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. I am satisfied that the parties received notice of the written hearing, so I shall proceed in the applicant’s absence.
7The applicant has the onus of demonstrating entitlement to the medical benefit, award, and interest in dispute. By not filing any submissions or evidence with the Tribunal, I find that the applicant has not met her burden.
8I further find that the applicant did not file a Notice of Motion requesting an extension of the initial submission deadline.
COSTS REQUEST
9I do not find the respondent has met the high threshold needed to order costs.
10Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. Rule 19.5 lists factors the Tribunal shall consider when determining whether to order costs (and, if so, how much).
11Highlighting her lack of written submissions and documentary evidence, the respondent supports its costs request by submitting that the applicant “acted unreasonably, frivolously, and/or in bad faith by bringing this application”, and that she has refused to comply with an order from the Tribunal. It also claims the applicant should pay costs for “bringing a frivolous, unreasonable motion in bad faith”, along with her decision to not serve and file submissions and evidence.
12I find the respondent has not established that the applicant’s behaviour merits costs. Though I recognize that the applicant has breached the submissions deadline from the case conference report and order (a breach that has prejudiced the respondent and impacted the Tribunal’s ability to carry out a fair, efficient, and effective process), I conclude that her breach is remedied through this decision. As such, I do not find a costs order is needed.
13Additionally, considering the applicant’s limited success on the motion that the respondent claims is “frivolous, unreasonable” (i.e., an issue amendment was granted, while the other forms of relief were denied), I find this aspect of the costs request also does not meet the high standard of Rule 19.1.
ORDER
14As the applicant has made no submissions and tendered no evidence in support of the claims before the Tribunal, the applicant has not demonstrated entitlement to the disputed medical benefit, award, and interest.
15The respondent’s request for costs is denied.
16The application is dismissed.
Released: December 2, 2024
Craig Mazerolle
Vice-Chair