Licence Appeal Tribunal File Number: 21-007546/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:
Brenda Scott
Applicant
and
Aviva Insurance Company of Canada
Respondent
AMENDED DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: No Submissions Filed
For the Respondent: Rajesan Rajendran, Counsel
HEARD: By way of written submissions
OVERVIEW
1Brenda Scott (the “applicant”) was involved in an automobile accident on June 18, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company of Canada (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
2The issues in dispute are:
Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $3,000.00 per month from August 7, 2019 to date and ongoing?
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from August 30, 2019 to date and ongoing?
Is the applicant liable to pay costs to the respondent?
3In submissions, the respondent added the above request for costs. As Rule 19.2 of the Tribunal’s Common Rules of Practice & Procedure (the “Rules”) allows a party to make a request for costs in writing or orally at a case conference or hearing at any time before a decision or order is released, I have added it to the list of items in dispute.
RESULT
4The 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 benefits in dispute.
5I find that the applicant is liable to pay costs of $250.00 to the respondent due to her frivolous conduct in this matter.
ANALYSIS
Proceeding in the absence of one of the parties
6I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.
7Proceeding 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 (“SPPA”), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.
8Both parties participated in a case conference that was held on December 6, 2022. This resulted in a Case Conference Report and Order (“CCRO”) dated the same day that set this matter down for a written hearing.
9The CCRO established production deadlines based on the date of the case conference. Initial productions were to be exchanged no later than 60 days from the case conference, with responsive items to be exchanged no later than 120 days from the case conference. The CCRO also set a timetable that ordered the applicant to file her written submissions and evidence 40 calendar days before the hearing date to be scheduled by the Tribunal, the respondent to file its submissions and evidence 14 calendar days before the hearing, and the applicant to file reply submissions seven calendar days before the hearing.
10On March 9, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for August 11, 2023. As a result of the CCRO and the NoWH, the applicant’s written submissions were due on July 4, 2023, the respondent’s written submissions were due on July 28, 2023, and the applicant’s reply submissions were due on August 4, 2023.
11The 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.
12On June 22, 2023, the applicant’s legal representative emailed the Tribunal with notification that it wanted to be removed from the record on this matter. On July 6, 2023, the applicant’s representative sent further correspondence noting that it was no longer representing the applicant as it had not been able to contact her. It provided the Tribunal with the applicant’s phone number and home address.
13Tribunal review of this application resulted in a notice of dismissal letter being sent to both parties on July 5, 2023 that indicated its intent to dismiss the claim under Rule 3.4 (Dismissal Without a Hearing). This notice allowed the parties 10 days to file and serve reasons why the application should not be dismissed. The applicant did not respond. The respondent sent an email to the Tribunal on July 6, 2023 stating that it would be seeking a decision based on the respondent’s submissions, which included a request for costs.
14The Tribunal made multiple attempts via phone and mail to contact the applicant, beginning on June 22, 2023. All were unsuccessful with the exception of a phone call on August 8, 2023, when the applicant told the Tribunal that she had no access to a computer or email and could not walk to her mailbox. The applicant said that she wanted to abandon this Tribunal proceeding, as she did not have the funds to hire a new lawyer. Despite this comment, the applicant did not file a notice of withdrawal with the Tribunal.
15Given the applicant’s attendance at the case conference, the multiple notification attempts, and the phone call detailed above, I am satisfied that the applicant 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.
16For 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
17I 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 to demonstrate entitlement to the benefits claimed.
18As 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.
19The applicant failed to meet this onus as she did not file written submissions or evidence with the Tribunal in accordance with the timeline established by the CCRO and the NoWH as noted above. She also did not file submissions or evidence in the subsequent four months since the hearing date of August 11, 2023, nor did she contact the Tribunal with a request for an extension of the submission deadlines or file a notice of withdrawal as she apparently indicated was her preference during the phone call on August 8, 2023.
20The respondent filed its submissions and evidence on July 10, 2023 in accordance with the timeline established in the CCRO and NoWH. In these submissions, the respondent listed a number of what it referenced as “preliminary issues” regarding the applicant’s failure to file written submissions and evidence in accordance with the CCRO and NoWH. It requested a ruling that the applicant not be permitted to file late submissions and evidence and that the application be dismissed. The respondent also made submissions on the ACB matter in dispute.
21I decline to provide rulings on the specific “preliminary matters” as raised by the respondent in submissions. The respondent did not seek to add these issues via notice of motion to the Tribunal. As a result, they are not properly before me.
22However, given the applicant’s failure to provide submissions or evidence, it is clear that she has not met her evidentiary burden. This application shall be dismissed.
Costs
23I find that the applicant is liable to pay $250.00 in costs to the respondent, due to her frivolous conduct with regard to this hearing.
24Costs are a discretionary remedy that the Tribunal may impose when it is determined that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, pursuit to Rule 19.1 of the Rules and s. 17.1 of the SPPA.
25In this instance, the respondent submits that the applicant has acted unreasonably, frivolously, and/or in bad faith by bringing forward this application, failing to act in accordance with the CCRO, and not filing written submissions and evidence, as detailed above. The respondent requests that it should be entitled to the costs of this proceeding on a “full indemnity basis,” and adds that such costs amount to approximately $7,000.00 to date.
26I agree, but only in part. In accordance with the criteria set forth in Rule 19.5, I find that the applicant’s frivolous conduct interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process. Although the threshold required for costs is high, the applicant meets this criteria given the disregard displayed for Tribunal orders on multiple occasions. The applicant also had the opportunity to formally withdraw this application or seek accommodation, given her comments during the phone call with the Tribunal on August 8, 2023, yet chose not to do so.
27However, I find the $7,000.00 in costs “on a full indemnity basis” to be excessive. This amount would also appear to be in contravention of Rule 19.6, which establishes that the amount of costs shall not exceed $1,000.00 for each full day of attendance at a motion, case conference, or hearing. Even though Rule 19.6 does not specify a maximum amount in costs that can be applied in a written hearing, in my opinion an award of the amount requested by the respondent would go against the spirit of this rule and also have an unduly negative impact on individuals accessing the Tribunal system.
28Moreover, the applicant’s conduct does not rise to the level where a maximum costs award would be warranted. In my view, failing to file submissions and failing to withdraw an application despite the stated desire to do so demonstrates frivolous conduct, not the bad faith that would be required for me to make a maximum award.
29In addition, I also note that the applicant’s legal representative withdrew shortly before the written hearing date. This clearly had an impact on her ability to file submissions for the hearing.
30For the above reasons, I order that the applicant pay $250.00 in costs to the respondent, pursuant to Rule 19 and s. 17.1 of the SPPA.
ORDER
31As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden to establish entitlement to the benefits in dispute.
32The applicant is liable to pay $250.00 in costs to the respondent.
33The application is dismissed.
Released: January 4, 2024
Brett Todd
Vice-Chair