Abdi v. Aviva Insurance Canada, 2024 CanLII 18078

Licence Appeal Tribunal File Number: 23-001464/AABS

Citation: Abdi v. Aviva Insurance Canada, 2024 ONLAT 23-001464/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:

Abdifatah Abdi Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Abdifatah Abdi, Applicant

For the Respondent: Aresheena Harripaul, Representative Jonathan White, Counsel

Court Reporter: Alyssa Scott

HEARD: by Videoconference: February 26, 2024

OVERVIEW

1Abdifatah Abdi, the applicant, was involved in an automobile accident on July 16, 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, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant attended a telephone case conference on September 27, 2023 during which, on consent of the parties, the matter was set to proceed to a 4-day videoconference hearing. Subsequently, on October 27, 2023, the Tribunal delivered a notice of hearing to the parties and to their representatives scheduled to begin today. On or about December 11, 2023 the Tribunal received a notice of withdrawal from the applicant’s representative and the applicant was self-represented going forward.

PRELIMINARY ISSUES

3The preliminary issue to be decided is:

1. Is the applicant barred from proceeding to a hearing for substantive issue #5 because the applicant failed to attend a properly scheduled insurer’s examination under s. 44 of the Schedule?

4The substantive issues to be decided are:

1. Is the applicant entitled to an income replacement benefit in the amount of $134.08 per week from January 3, 2023 to date and ongoing?
2. Is the applicant entitled to $1,130.52 for physiotherapy services, proposed by HealthMax Physio in a treatment plan dated June 24, 2022?
3. Is the applicant entitled to $8,339.04 for social rehabilitation counselling, proposed by HAL Disability in a treatment plan dated March 29, 2021?
4. Is the applicant entitled to the assessments proposed by HAL Disability, as follows: a. $2,460.00 for an orthopaedic assessment, in a treatment plan dated February 10, 2021; and b. $226.00 ($2,686.00 less $2,460.00 approved) for an ENT assessment, in a treatment plan dated February 16, 2022?
5. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from July 17, 2020 to date and ongoing?
6. Is the respondent liable to pay an award under s. 10 of reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant failed to meet its burden on all the issues in dispute.

6The application is dismissed.

PROCEDURAL ISSUES AND ANALYSIS

7At the commencement of the hearing, the respondent and respondent’s counsel were present, but the self-represented applicant was not in attendance. As a result of the applicant’s failure to attend and considering Rule 3.7.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), the Tribunal took a short break and waited 30 minutes from the scheduled start time. During the break, the Tribunal attempted to contact the applicant by phone and email unsuccessfully. The Tribunal left a voicemail message and an email message and waited for a response from the applicant throughout the hearing.

8Upon recommencement of the hearing, the applicant was still not in attendance and respondent’s counsel was asked for submissions.

9Considering Rule 3.7.1 and s. 7(3) of the Statutory Powers Procedure Act, I ordered the hearing to proceed in the absence of the applicant.

10After review of the Tribunal’s file and hearing submissions from respondent’s counsel, I found that the applicant:

i. had received a hearing notice, ii. did not attend the scheduled hearing as contemplated by Rule 3.7.1, iii. did not provide reasons for the non-attendance, iv. did not seek any relief from the Tribunal relating to the scheduled hearing date or time, v. did not comply with this Tribunal’s production, exchange, and filing orders contained in the Case Conference Report and Order dated October 6, 2023, vi. did not present any evidence in support of the applicant’s position with respect to the issues in dispute, and vii. did not meet their burden of proof with respect to any of those issues.

ORDER

11For the reasons provided above, this application is dismissed.