Licence Appeal Tribunal File Number: 22-007810/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:
Abdul Sheikh
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR:
Jeremy A. Roberts
APPEARANCES:
For the Applicant:
Abdul Sheikh (did not attend) Gurpreet Farmaha, Counsel
For the Respondent:
Lori Marzinotto, Counsel
Interpreter: Court Reporter:
Safia Parveen, Urdu Interpreter Nikita Ivachtechenko
HEARD: by Videoconference:
November 14, 2023
OVERVIEW
1Abdul Sheikh, the applicant, was involved in an automobile accident on November 4, 2019, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from November 25, 2019 and onwards?
ii. Is the applicant entitled to $2,460.00 for psychological services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated October 2, 2020?
iii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Complete Rehab Centre in a treatment plan dated November 24, 2020?
iv. Is the applicant entitled to $2,000.00 for psychological services, proposed by Prime Healthcare Inc., in a treatment plan dated May 20, 2020?
v. Is the applicant entitled to $2,000.00 for an attendant care assessment, proposed by Prime Healthcare Inc., in a treatment plan dated November 11, 2019?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
viii. Is the respondent entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules (2023) (“LAT Rules”)?
RESULT
3The applicant is not entitled to an NEB, the treatment plans in dispute, interest, or an award.
4The respondent is entitled to costs in the amount of $500.00 pursuant to Rule 19.
5The application is dismissed.
PROCEDURAL ISSUES
First Adjournment Request
6At the onset of the hearing, applicant’s counsel requested an adjournment of at least two months because she has been unable to reach the applicant for over three months and has no instructions on how to proceed. The respondent objected to the request for adjournment, arguing that inability to contact the applicant was not a compelling reason to grant an oral adjournment request under Rule 16.3 of the LAT Rules. The respondent instead requested that I dismiss the matter without a hearing.
7I considered submissions from both parties and denied both the adjournment request and the request to dismiss the matter without a hearing. I agreed with the respondent that applicant’s counsel had ample time to attempt to contact the applicant, prepare the case, or make alternative arrangements. I did not consider this to be a compelling reason under Rule 16.3 to grant an adjournment. However, I also found that I do not have the authority to dismiss the matter without a hearing without following the process outlined in Rule 3.5. Under s. 7 of the Statutory Powers Procedure Act I may proceed with a hearing in the absence of a party provided proper notice was given, which it was in this case. As such, I ordered that the matter proceed.
Second Adjournment Request
8Applicant’s counsel then notified me that she was required to attend another matter that was scheduled to commence in 30 minutes. She requested a one-day adjournment to allow her to deal with the other matter and prepare her case. The respondent objected, arguing that I had already denied an adjournment request and that one day would not provide the applicant’s representative with any meaningful ability to prepare for the case as the applicant had not yet submitted a brief nor scheduled any witnesses and doing so at this stage would be prejudicial to the respondent.
9I denied this adjournment request. I agreed with the respondent that I had already made a ruling on an adjournment for this matter and, pursuant to Rule 16.4 of the LAT Rules I would not be considering any further adjournment requests for the same proceeding except in new and exceptional circumstances, which these were not. Under Rule 16.4 “new” means that the information was not known, and could not have been known, at the time of the first request. The applicant’s representative knew about her prior commitment in advance and knew that this hearing was scheduled to proceed. The hearing proceeded.
ANALYSIS
The applicant is not entitled to the benefits in dispute, interest, or an award
10In order to be entitled to an NEB, the applicant must demonstrate, pursuant to s. 12 of the Schedule that he has sustained an impairment as a result of the accident and suffers from a complete inability to carry on a normal life as a result of that accident within 104 weeks. Section 12 further provides that entitlement to an NEB must satisfy the condition that the insured, “does not qualify for an income replacement benefit.”
11In order to be entitled to the treatment plans in dispute, pursuant to s. 16(1) of the Schedule the applicant must prove that they are reasonable and necessary expenses incurred as a result of the accident that will reduce or eliminate the effects of any disability resulting from the impairment or facilitate his reintegration into his family, the rest of society, or the labour market.
12The applicant made no submissions on any of the benefits in dispute as the applicant’s representative advised the Tribunal that the applicant had no evidence to submit and therefore could not meet his onus.
13The respondent submits that the application should be dismissed because the applicant:
i. Failed to submit a document brief despite receiving the Tribunal’s case conference report and order requiring him to do so; and
ii. Failed to submit evidence in support of his claims.
14Consequently, the respondent argues that the applicant has failed to meet his onus in support of the benefits in dispute.
15It is the applicant’s onus to prove his entitlement to the benefits in dispute. He has failed to provide submissions or evidence on the issues in dispute. Therefore, he is not entitled to NEB or the treatment plans in dispute.
16As there are no payments owed, the applicant is not entitled to an award or interest.
The respondent is entitled to costs of $500.00
17The respondent is entitled to costs.
18Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct. The purpose of Rule 19.1 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a costs award and is an exceptional remedy. Rule 19.6 sets out the maximum amount of costs, which shall not exceed $1,000.00 for each full day of attendance at a hearing.
19In its closing submissions, the respondent argued that costs were appropriate given that the applicant frivolously wasted the respondent’s time by not attending the first scheduled case conference, failing to submit a brief, not attending the hearing, and failing to provide instructions to their counsel on how to proceed.
20The applicant did not make any submissions.
21In considering the submissions, I agree with the respondent. Despite having knowledge of the proceedings that he had initiated, the applicant did not participate meaningfully in the process nor notify the Tribunal and respondent of any intention to abandon the claim. The Tribunal scheduled an interpreter, at its own cost, and the respondent scheduled a court reporter. Because of this, I agree that the applicant acted frivolously. Accordingly, I am granting the respondent costs of $500.00, in reflection of the costs incurred to hire a court reporter.
ORDER
22I order the following:
i. The applicant is not entitled to the benefits in dispute.
ii. The respondent is entitled to costs of $500.00.
iii. The application is dismissed.
Released: January 5, 2024