Citation: Ikiriko v. Aviva Insurance Company of Canada, 2024 ONLAT 22-007472/AABS

Licence Appeal Tribunal File Number: 22-007472/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:

Hope Ikiriko

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

No Submissions Filed

For the Respondent:

No Submissions Filed

HEARD:

By way of written submissions

OVERVIEW

1Hope Ikiriko (the “applicant”) was involved in an automobile accident on September 28, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company of 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.

ISSUES IN DISPUTE

2The issues in dispute are:

1. Is the applicant entitled to $5,387.12 for occupational services, proposed by MedEx Health Services in a treatment plan/OCF-18 (“plan”) dated January 16, 2020?
2. Is the applicant entitled to $9,801.47 for rehabilitation support services, proposed by MedEx Health Services in a plan dated January 16, 2020?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. 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 Parties

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.

6The applicant’s counsel and representatives for the respondent participated in a case conference that was held on March 17, 2023. The applicant herself did not take part in this case conference, although the adjudicator proceeded in her absence. This resulted in a Case Conference Report and Order (“CCRO”) that was released on March 20, 2023. It detailed the issues in dispute as described above and set this matter down for a written hearing.

7On April 27, 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 on November 22, 2023 and the respondent’s written submissions were due on December 8, 2023. The applicant’s reply submissions, if any, were due on 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 July 13, 2023, the applicant’s legal representative filed a Notice of Motion (“NoM”) with the Tribunal requesting an order to remove the firm as the lawyers of record for the applicant due to an “irreparable” material breakdown between the applicant/litigation administrator and counsel. No further specifics were provided, although this email included an attachment of the NoWH that was marked “returnable.” In an email dated July 18, 2023, the Tribunal confirmed that this counsel had been removed from the record.

10Regardless, it is clear that the applicant’s legal counsel represented the applicant in the case conference that resulted in this matter being set down for a written hearing with the Tribunal. As a result, I am satisfied that the applicant should have been aware that this written hearing was proceeding. Further, It is the applicant’s responsibility to inform the Tribunal in writing of a change to her contact information, pursuant to Rule 4.4 of this Tribunal’s Rules.

11I am also satisfied that the respondent received notification for this hearing. Although the respondent did not file hearing submissions, the respondent did take part in the case conference as noted above, and it filed an NoM with the Tribunal on December 19, 2023 to strike this application due to the applicant’s failure to file submissions.

12Lastly, I am satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.

13For 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

14I find that the applicant has failed to meet her burden regarding the issues in dispute, as she has failed to provide submissions.

15As 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 established by the CCRO and the NoWH, as detailed above.

16As also referenced above, the respondent filed an NoM on December 19, 2023 seeking that this 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 her evidentiary burden, which renders it unnecessary to also determine that this application has been abandoned.

17In addition, Rules 3.4 and 3.5 of this Tribunal’s Rules, the sections that address the dismissal of applications, contemplate dismissal without a hearing. As this matter has proceeded to the hearing stage, the framework as set out in these rules no longer applies.

18As the applicant has failed to provide submissions, she cannot meet her burden. Therefore, this application shall be dismissed.

ORDER

19As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden regarding the issues in dispute.

20The application is dismissed.