Licence Appeal Tribunal File Number: 22-005023/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:
Muhammad A. Anjum
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Leanne W. Zabudsky, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Muhammad A. Anjum (the “applicant”) was involved in an automobile accident on September 24, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance Company (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 IN DISPUTE
2The issues in dispute are:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $158.15 per week from June 11, 2022 to the 104-week mark?
Is the applicant entitled to $2,820.25 for chiropractic services, proposed by Progressive Rehab Clinic in a treatment plan/OCF-18 (“plan”) submitted March 18, 2021 and denied March 23, 2022?
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Doctor’s Rehab in a plan submitted May 12, 2022 and denied July 14, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. As the applicant has made no submissions for this hearing, I find that he has not met his evidentiary burden with regard to the issues in dispute.
ANALYSIS
Proceeding in the Absence of the Respondent
4I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.
5Proceeding 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.
6Both parties participated in a case conference that was held on February 28, 2023. A Case Conference Report and Order (“CCRO”) was released on March 8, 2023 detailing the issues in dispute as described above and setting this matter down for a written hearing.
7On April 4, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for December 8, 2023. As a result of the timeline established by the CCRO and the NoWH, the applicant’s written submissions were due on November 8, 2023 and the respondent’s written submissions were due on November 24, 2023. The applicant’s reply submissions, if any, were due on December 1, 2023.
8The 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.
9On November 6, 2023, the applicant’s legal representative sent an email to both the Tribunal and the respondent noting that the firm was no longer representing the applicant. A Removal of Representative form was filed with the Tribunal and the former representative also supplied the Tribunal and the respondent with the last known phone number, email address, and home address of the applicant.
10An email query sent by the Tribunal to the applicant on November 7, 2023 noted the December 8, 2023 date of the hearing and that applicant submissions were due 30 days prior to that date was not immediately answered.
11On November 28, 2023, the applicant wrote to the Tribunal noting the loss of his legal representation and requesting more time to arrange a new lawyer for this application. He also supplied his new phone number. The applicant has not been in contact with the Tribunal since the date of this email, and no submissions have been filed by or on behalf of the applicant in this matter.
12Given the above, I am satisfied that the applicant received sufficient notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA and that there were no communication difficulties between the Tribunal and the applicant. If any of the applicant’s contact information changed following his email of November 28, 2023, I note that it is the applicant’s responsibility to inform the Tribunal in writing of such a change under Rule 4.4 of this Tribunal’s Rules.
13I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
14For the above reasons, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant Has Not Met His Burden
15I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Therefore, he has failed to meet his burden regarding the issues in dispute.
16As held in Scarlett v. Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate that he is entitled to any claimed benefits.
17The applicant failed to meet this onus as he did not file written submissions with the Tribunal in accordance with the timeline established by the CCRO and the NoWH, as noted above. Also, the applicant has not been in contact with the Tribunal since the email that he sent on November 28, 2023, whether to file submissions, to provide an explanation for the submissions having not been filed, or to request an extension to the deadlines set in the CCRO and NoWH.
18As of the date of this decision, more than four months have passed since the applicant’s submissions were due and more than three months have passed since the applicant was last in contact with the Tribunal. Although I am prepared to provide added latitude to applicants having issues with legal representation, or to those representing themselves, this amount of time is, in my view, sufficient to allow an applicant to determine a course of action and inform the Tribunal.
19The respondent filed its submissions on November 22, 2023, in accordance with the CCRO. In these submissions, the respondent writes that as the applicant has not provided any argument or evidence, the application should be dismissed in its entirety.
20I agree. Accordingly, this application shall be dismissed.
ORDER
21As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.
22The application is dismissed.
Released: March 18, 2024
Brett Todd
Vice-Chair