Citation: S.J v. Commonwell Mutual Insurance, 2024 ONLAT 22-002481/AABS

Licence Appeal Tribunal File Number: 22-002481/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:

[S.J] (A minor by her litigation guardian, [M.L])

Applicant

and

Commonwell Mutual Insurance

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Esan Ince-Mercer, Counsel

For the Respondent: Cecil Jaipaul, Paralegal

HEARD: By Way of Written Submissions

OVERVIEW

1[S.J], the applicant, was involved in an automobile accident on November 10, 2018, 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, Commonwell Mutual Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2During the January 9, 2023 case conference attended by the parties, this matter was ordered to proceed to a written hearing. A Notice of Written Hearing was sent to applicant’s counsel by fax and email on March 16, 2023, with a written hearing date of October 13, 2023. The due dates for written submissions were agreed during the case conference. The case conference report and order, issued to the parties on January 15, 2023, states that the applicant’s written submissions and evidence were due 30 calendar days before the scheduled hearing date and that the respondent’ written submission and evidence were due 14 days before the scheduled hearing date.

3The applicant did not file any written submissions and evidence with the Tribunal or with the respondent by the due date or thereafter.

4On October 5, 2023, in the absence of written submissions from the applicant, the respondent filed written submissions and evidence with the Tribunal. On October 10, 2023, the respondent filed a Certificate of Service certifying that the written submissions and evidence were served on the applicant’s counsel on October 6, 2023.

5In my view, it is appropriate to proceed in the absence of the applicant’s submissions pursuant to section 7(2) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22. I am satisfied the applicant received notice of the written hearing date of October 13, 2023. In keeping with Rule 3.1 of the Tribunal’s Common Rules of Practice and Procedure, I find that proceeding with the written hearing is an efficient and proportional resolution of this dispute.

ISSUES

6The 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 $1,328.10 for chiropractic services, proposed by Abbey Lane Chiropractic in a treatment plan/OCF-18 (“plan”) dated June 7, 2021 and denied June 10, 2021?

iii. Is the applicant entitled to $1,553.72 for chiropractic services, proposed by Abbey Lane Chiropractic in a plan dated November 4, 2021 and denied November 11, 2021?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7The applicant did not provide any evidence to the Tribunal in support of his claim that his injuries are “not minor” as defined by s. 3(1) of the Schedule and that those injuries entitle him to treatment outside of the Minor Injury Guideline (“MIG”) limit.

8The applicant did not provide any evidence to the Tribunal in support of his claim for the benefits in dispute.

ANALYSIS

The application is dismissed

9The applicant failed to make submissions and failed to present a case.

10It is the applicant’s burden to demonstrate that his injuries are “not minor” in accordance with s. 3(1) of the Schedule, and that those injuries entitle him to treatment outside of the MIG limit. That burden was not met.

11It is the applicant’s burden to demonstrate that he is entitled to the benefits in dispute. That burden was not met.

12Where the Tribunal was not presented with evidence from the applicant in support of his application, it follows that the applicant cannot be successful with his claim. I find that the applicant has not demonstrated that that his injuries are “not minor.” As a result, I do not find that he is entitled to benefits outside of the MIG limit. Also, I find that he has not demonstrated that he is entitled to any of the benefits claimed.

ORDER

13The applicant has not demonstrated that his injuries are “not minor” in accordance with s. 3(1) of the Schedule.

14The applicant is not entitled to any of the benefits in dispute.

15Since no benefits are payable, no interest is payable.

16The application is dismissed.