Khan v. Aviva Insurance Canada, 2024 CanLII 23475

Licence Appeal Tribunal

Citation: Khan v. Aviva Insurance Canada, 2024 ONLAT 22-007321/AABS Licence Appeal Tribunal File Number: 22-007321/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:

Shuja Khan Applicant

and

Aviva Insurance Canada Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: No Submissions Filed For the Respondent: Melanie A. Sousa, Counsel

HEARD: By way of written submissions

OVERVIEW

1Shuja Khan (the "applicant") was involved in an automobile accident on January 31, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Aviva Insurance 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.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue in dispute is:

1. Is the applicant barred from proceeding to a hearing on issue 5 below because the applicant failed to attend the s. 44 assessment?

SUBSTANTIVE ISSUES IN DISPUTE

3The substantive issues in dispute are:

1. 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 ("MIG") limit?
2. Is the applicant entitled to an income replacement benefit ("IRB") in the amount of $400.00 per week from June 16, 2020 and ongoing?
3. Is the applicant entitled to $698.25 ($798.00 less $99.75 approved) for physiotherapy services, proposed by Doctor's Rehab, in a treatment plan/OCF-18 ("plan") dated September 19, 2020?
4. Is the applicant entitled to $1,496.75 for physiotherapy services, proposed by Doctor's Rehab, in a plan dated December 7, 2020?
5. Is the applicant entitled to $2,200 for a psychological assessment, proposed by Gozland Psychology Professional Corporation, in a plan dated August 12, 2022?
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

4The 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 Applicant

5I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.

6Proceeding 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.

7Both parties participated in a case conference that was held on March 9, 2023. This resulted in a Case Conference Report and Order ("CCRO") that was released on April 17, 2023. It detailed the issues in dispute as described above and set this matter down for a written hearing.

8On April 25, 2023, the Tribunal emailed a Notice of Written Hearing ("NoWH") to both parties that set the written hearing date for December 15, 2023. As a result of the timeline established by the CCRO and the NoWH, the applicant's written submissions were due on November 15, 2023 and the respondent's written submissions were due on December 1, 2023. The applicant's reply submissions, if any, were due on December 8, 2023.

9The 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.

10On August 17, 2023, a representative of the legal firm representing the applicant notified both the Tribunal and the respondent that it was withdrawing from this matter. The firm also provided the Tribunal and the respondent with the current contact information of the applicant, including his home address, email address, and phone number.

11On that same day, the Tribunal spoke to the applicant by phone. At that time, he confirmed that he would be continuing his application and would be seeking new legal counsel. The Tribunal sent a follow-up email to the applicant later that day noting the phone call and requesting that he formally contact the Tribunal by August 24, 2023 if he still wished to continue with this application. This email also noted that a written hearing remained scheduled for December 15, 2023. Based on Tribunal records, the applicant did not reply.

12The applicant also failed to file response submissions regarding a Notice of Motion ("NoM") filed by the respondent on August 17, 2023. This NoM requested that the applicant be ordered to produce a number of documents that he failed to provide as had been set forth in the CCRO. It also sought an extension to the hearing disclosure deadline for both parties. In the absence of the applicant's participation, a Tribunal Motion Order was issued on September 12, 2023 that ordered the document production but denied the disclosure extension. Hearing submission dates were not affected.

13Given 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 after the phone call and email on August 17, 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.

14I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.

15For 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

16I 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.

17As 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.

18The 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 August 17, 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.

19As of the date of this decision, some four months have passed since the applicant's submissions were due and nearly seven months have passed since the applicant was last in contact with the Tribunal. Although I am prepared to provide added latitude to an applicant having issues with legal representation, or are representing themselves, this amount of time was, in my view, sufficient to allow the applicant to determine a course of action.

20The respondent filed its submissions on December 1, 2023 in accordance with the CCRO and NoWH. In these submissions, it requests that the application be dismissed as, in the absence of any evidence, the applicant cannot discharge his onus to demonstrate entitlement to any of the issues in dispute. The respondent did not file submissions regarding the preliminary issue noted above that was listed in the CCRO. As a result, I am not providing a ruling on this matter.

21I agree with the respondent's position that the applicant cannot meet his burden in the absence of submissions. Accordingly, this application shall be dismissed.

ORDER

22As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.

23The application is dismissed.