Licence Appeal Tribunal File Number: 22-007283/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:
Omowunmni J. Ayodele
Applicant
and
Allstate Insurance
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Christopher Lupis, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Omowunmni J. Ayodele (the “applicant”) was involved in an automobile accident on January 26, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Allstate 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:
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?
Is the applicant entitled to $2,160.51 for a psychological assessment proposed by Dr. Sandra Oziel, submitted May 03, 2021 and denied May 04, 2021?
Is the applicant entitled to $1,995.00 for an orthopaedic assessment proposed by Dr. Larysa Mikhailava, submitted June 22, 2021 and denied June 22, 2021?
Is the applicant entitled to $2,000.01 for a physiatry assessment proposed by Dr. Larysa Mikhailava, submitted June 22, 2021 and denied June 22, 2021?
Is the applicant entitled to $2,185.18 for a neurological assessment proposed by Dr. Larysa Mikhailava, submitted June 21, 2021 and denied June 22, 2021?
Is the applicant entitled to $1,895.30 for an attendant care assessment proposed by Dr. Larysa Mikhailava, submitted June 21, 2021 and denied June 22, 2021?
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 22, 2021 to date and ongoing?
Is the applicant entitled to $1,786.54 for a psychologist driving anxiety assessment proposed by Dr. Konstantinos Peapazoglou, submitted October 13, 2021 and denied October 26, 2021?
Is the applicant entitled to $2,026.55 for chiropractic and massage therapy treatments proposed by Dr. Jennifer Violante, submitted November 26, 2021 and denied November 26, 2021?
Is the applicant entitled to $1,417.70 for chiropractic and massage therapy treatment proposed by Dr. Jennifer Violante, submitted June 7, 2022 and denied June 9, 2022?
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 she has not met her evidentiary burden with regard to the issues in dispute.
ANALYSIS
Proceeding in the Absence of the Applicant
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 March 13, 2023 that resulted in a Case Conference Report and Order (“CCRO”) released on March 28, 2023. This CCRO detailed the issues in dispute as detailed above and set this matter down for a written hearing.
7On April 25, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for December 22, 2023. As a result of the timeline established by the CCRO and the NoWH, the applicant’s written submissions were due by November 22, 2023 and the respondent’s written submissions were due by December 8, 2023. The applicant’s reply submissions, if any, were due by December 15, 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 August 8, 2023, the applicant’s legal firm advised the Tribunal and the respondent by email that it was no longer representing her. This email included the applicant’s current home mailing address, email address, and phone number.
10The Tribunal contacted the applicant by email on August 8, 2023 immediately after receiving the above correspondence from her former legal representative and again on September 7, 2023. Both emails were sent to inquire about the applicant’s intentions with regard to this application. Further email reminders were sent by the Tribunal to the applicant about her missing hearing submissions on December 5, 2023 and December 12, 2023. Tribunal records also indicate that attempts were made to contact the applicant by phone on December 12, 2023, but the applicant did not answer and her voice mailbox was full.
11The applicant’s only response to the above attempts at communication by the Tribunal came on December 13, 2023. In reply to the Tribunal email sent the day before, the applicant apologized for not responding to the earlier emails and noted that she had left Canada and did not know if her application could be put on hold as a result.
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. Her email of December 13, 2023 makes it clear that she was receiving email from the Tribunal and was aware that her application was proceeding.
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 Her Burden
15I find that the applicant had the opportunity to make submissions for this hearing and failed to do so. Therefore, she has failed to meet her 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 she is entitled to any claimed benefits. The applicant failed to meet this onus as she did not file written submissions with the Tribunal in accordance with the timeline as established by the CCRO and the NoWH, as noted above.
17As of the date of this decision, some four months have passed since the applicant was last in contact with the Tribunal on December 13, 2023. Also, five months have now passed since the applicant’s submissions were due for this hearing.
18The respondent filed its submissions on November 22, 2023, in accordance with the CCRO and NoWH. In these submissions, the respondent writes that as the applicant has not provided any argument or evidence, she cannot meet her burden and the application should be dismissed. The respondent also notes that the applicant has not communicated with the respondent since her former counsel withdrew on August 8, 2023.
19I agree with the respondent. Accordingly, this application shall be dismissed.
ORDER
20As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden regarding the issues in dispute.
21The application is dismissed.
Released: April 23, 2024
Brett Todd
Vice-Chair```