Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-006397/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:
Marvis Eghomwanre
Applicant
and
Aviva General Insurance
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: No Submissions Filed
For the Respondent: Joshua Edmunds, Counsel
HEARD: By way of written submissions
OVERVIEW
1Marvis Eghomwanre (the “applicant”) was involved in an automobile accident on June 17, 2018 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 (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 a physical therapy treatment plan dated March 31, 2021 in the amount of $4,760.00, recommended by LT and N Physio Clinic?
- Is the applicant entitled to a physical therapy treatment plan dated August 19, 2021 in the amount of $2,391.50, recommended by Focus Physio?
- Is the applicant entitled to interest on any overdue payment of benefits?
- Is the applicant liable to pay costs of $1,000.00 to the respondent?
3The costs request was added by the respondent in its written submissions for this hearing. As Rule 19.2 of the LAT Rules allows such a request for costs to be made 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 issues in dispute.
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.
5The applicant is not liable to pay costs to the respondent.
ANALYSIS
Proceeding in the Absence of the Applicant
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 March 3, 2023 that resulted in a Case Conference Report and Order (“CCRO”) released on March 11, 2023. This CCRO detailed the issues in dispute as detailed above and set this matter down for a written hearing.
9On April 24, 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 by November 15, 2023 and the respondent’s written submissions were due by December 1, 2023. The applicant’s reply submissions, if any, were due by December 8, 2023.
10The 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.
11The applicant did not file his hearing submissions by November 15, 2023, and has not filed submissions for this matter to date.
12The respondent sent an email to the applicant on November 17, 2023 requesting that submissions be sent in a timely manner or it would be filing a motion to dismiss the application as abandoned. On November 22, 2023, the applicant’s legal representative replied with the explanation that he had not received the NoWH from the Tribunal due to a change in the office email address. The legal counsel informed the respondent that he would be filing a motion with the Tribunal to extend the deadline for written submissions.
13When the applicant did not immediately file this motion, the respondent filed its own motion with the Tribunal on November 23, 2023 seeking the dismissal of the application. This motion was scheduled to be heard with the substantive matters at this written hearing.
14On November 29, 2023, the applicant filed a motion seeking the extension of the written hearing deadline. This was heard by the Tribunal in writing on December 13, 2023. The applicant’s request for an extension was denied in a Motion Order dated December 14, 2023. The Tribunal found that the applicant should have filed its NoM shortly after the email sent by the respondent on November 17, 2023 and that the applicant should have filed its written submissions with this motion.
15In this Motion Order, the Tribunal also did not accept the applicant’s explanation for missing the submission deadline, citing Rule 4.4 of the LAT Rules, which mandates that a party must notify the Tribunal in writing of any change in contact information. This requirement, the Tribunal found, was not adhered to by the applicant in this instance. The applicant sent email to the Tribunal from the new address but did not specifically alert the Tribunal that the firm’s email address on file needed to be updated, with the apparent expectation that sending the email alone constituted proper notice.
16Further, at no point after becoming aware of the missed deadline did the applicant file written submissions to demonstrate that he was prepared to participate in this hearing.
17Given the facts as detailed above and the ruling in the Tribunal Motion Order, I am satisfied that the applicant received sufficient notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. Further, I am satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
18For 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
19I find that the applicant had the opportunity to make submissions for this hearing and failed to do so. Therefore, he has failed to meet his burden regarding the issues in dispute.
20As 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. The applicant failed to meet this onus as he did not file written submissions with the Tribunal in accordance with the timeline as established by the CCRO and the NoWH, as detailed above.
21The respondent filed its submissions on December 1, 2023, in accordance with the deadlines set in the CCRO and NoWH. In these submissions, the respondent requests that the application be dismissed due to the applicant’s ongoing failure to provide submissions. It also submits that, if the Tribunal were not to dismiss the application and the applicant afforded the ability to provide submissions, that it be provided the opportunity to make additional submissions and file further evidence to respond to the applicant’s claims.
22I agree with the respondent. The applicant cannot meet his burden in the absence of submissions and evidence. Also, the applicant’s request for an extension of the written hearing deadline has already been denied by the Tribunal in the Motion Order dated December 14, 2023.
23As noted above, the respondent also filed an NoM on November 23, 2023 seeking that the application be dismissed as abandoned due to the applicant’s failure to file submissions. However, I decline to rule on this motion. The applicant has failed to provide hearing submissions and cannot meet his evidentiary burden, which renders it unnecessary to also determine that the application has been abandoned.
24In addition, Rules 3.4 and 3.5 of the LAT Rules, the sections that address the abandonment of applications, contemplate dismissal for this reason without a hearing. As this matter has proceeded to the hearing stage, the framework as set out in these rules no longer applies.
25As the applicant has failed to provide submissions, he cannot meet his burden.
Costs
26I find that the applicant is not liable to pay costs to the respondent.
27Costs 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, pursuant to Rule 19.1 of the LAT Rules and s. 17.1 of the SPPA.
28Here, the respondent submits that the applicant has acted unreasonably, frivolously, vexatiously, and/or in bad faith. It alleges that the applicant has not provided any explanation for his failure to serve submissions or for his delay in providing motion materials with regard to the deadline extension request. These actions, the respondent claims, were in contravention of the CCRO and forced it to file its own additional motions.
29As a result, the respondent claims that the applicant should be found liable to pay costs of $1,000.00. The respondent relies on two decisions of this Tribunal in which costs were awarded—16-001032 v. Allstate Insurance Company of Canada, 2017 CanLII 148122 (ON LAT) (at para. 9) and P.M. v. TD Insurance Meloche Monnex, 2019 CanLII 76985 (ON LAT) (at paras. 27 to 36).
30I do not agree that the applicant’s conduct warrants an order for costs. Most notably, failure to file submissions is a relatively common occurrence that does not necessarily demonstrate the conduct contemplated in Rule 19. Awarding costs solely on the basis of a failure to file submissions would also have an impact on individuals accessing the Tribunal system, which is a factor that must be considered in costs claims, as established in Rule 19.5. Here, the applicant’s failure to file submissions has no features that would suggest conduct of the nature contemplated in Rule 19 that would warrant an award of costs.
31Also, the applicant has provided an explanation as to why submissions were not sent. This explanation was not deemed sufficient by the Tribunal in the Motion Order dated December 14, 2023 to allow for an extension of hearing submission deadlines. However, that the applicant offered some rationale indicates to me that he was not behaving with such bad faith as to warrant costs.
32Lastly, I do not find the Tribunal decisions cited by the respondent to be persuasive. While I am not bound by Tribunal decisions, these matters involve more than late submissions. In 16-001032 v. Allstate, the applicant filed late submissions with no apparent explanation and did not disclose documents. P.M. v. TD Insurance Meloche Monnex involved the late filing of submissions and the late disclosure of expert reports. Both decisions also involved much lower amounts of $125.00 and $250.00 than the $1,000.00 sought here.
33Accordingly, I decline to order that the applicant pay costs to the respondent.
ORDER
34As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.
35The applicant is not liable to pay costs to the respondent.
36The application is dismissed.
Released: April 26, 2024
Brett Todd Vice-Chair