Licence Appeal Tribunal File Number: 22-004301/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:
Philip Dika
Applicant
and
Intact Insurance Company
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
1Philip Dika (the “applicant”) was involved in an automobile accident on September 28, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Intact 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:
- 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 $1,294.98 for chiropractic services, proposed by Aviva Hamilton in a treatment plan/OCF-18 (‘plan’) dated January 13, 2020?
- Is the applicant entitled to $4,281.28 for chiropractic services, proposed by Aviva Hamilton in a plan dated October 30, 2019?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. As the applicant and/or representatives acting on his behalf have made no submissions for this hearing, I find that the evidentiary burden cannot be met 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 sadly passed away before this Tribunal application proceeded to a case conference on February 1, 2023. At this case conference, the applicant was represented by his widow as well as a legal representative. As the issues in dispute could not be settled at the case conference, a Case Conference Report and Order (“CCRO”) was released on February 23, 2023 setting this matter down for a written hearing, with the issues in dispute as listed above.
7On March 29, 2023, the Tribunal emailed a Notice of Written Hearing (“NOWH”) to the parties that set the written hearing date for November 10, 2023. According to the timeline that was established by the CCRO and the NOWH, the applicant’s written submissions were due by October 11, 2023 and the respondent’s written submissions due by October 27, 2023. The applicant’s reply submissions, if any, were due on November 3, 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 September 6, 2023, the applicant’s legal representative filed a Removal of Representative form with the Tribunal in accordance with Rule 24 of the LAT Rules. The applicant’s former representative provided phone and email contact information for the applicant’s widow to the Tribunal in email correspondence on this same day.
10The Tribunal contacted the applicant’s widow by email on September 8, 2023, October 18, 2023, and October 24, 2023 to inquire about the status of this application. The Tribunal noted in these emails that a Certificate of Appointment of Estate Trustee (“CoA”) from the Superior Court was required so that the applicant’s widow would have standing to continue with this application.
11An email response from the applicant’s widow dated November 17, 2023 forwarded an email from March 31, 2023 noting that she had been appointed as the executor of his estate. The Tribunal explained by email the same day that the CoA was still required to enable her to represent the estate and continue with the application.
12On December 12, 2023, a legal representative acting on behalf of the applicant’s widow filed a notarial copy of the applicant’s will naming the applicant’s widow as the trustee of the applicant’s estate. This legal representative claimed that a CoA was not required to allow the applicant’s widow to continue this application.
13In an email dated December 20, 2023, the Tribunal requested that this legal representative file a Declaration of Representative (“DOR”) form. Later that same day, the legal representative explained in an email that the firm was acting only with regard to the estate of the applicant, not the accident claim, and maintained again that the CoA was not required here. On December 21, 2023, the Tribunal sent an email reiterating that a DOR was required before any action could be taken on this application.
14According to Tribunal records, no reply was received to the December 21, 2023 email. No CoA or DOR has been filed on behalf of the applicant.
15As a result of the above communication, I am satisfied that the applicant was aware that this written hearing was proceeding.
16I 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. Further, the respondent was in email communication with the Tribunal in the fall of 2023 inquiring about next steps given the unfortunate passing of the applicant. The respondent also filed a Notice of Motion (“NOM”) with the Tribunal on February 5, 2024 requesting either the dismissal of this application or an adjournment of the matter for 30 days to allow the applicant time for the “regularization of the late claimant’s legal representation,” with non-compliance then resulting in an “automatic dismissal.”
17Lastly, 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.
Evidentiary Burden Has Not Been Met
19I find that the applicant and/or his representatives have failed to meet the burden regarding the issues in dispute, as no submissions have been filed for this hearing.
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 and/or his representatives have failed to meet this onus, as written submissions were not filed with the Tribunal in accordance with the timeline established by the CCRO and the NOWH, detailed above.
21As also referenced above, the respondent filed an NOM on February 5, 2023 seeking that this application be dismissed. No response was filed to this NOM on behalf of the applicant.
22However, I decline to rule on this motion. As no hearing submissions have been filed on behalf of the applicant, the evidentiary burden cannot be met. This renders it unnecessary to also determine that this application has been abandoned. In 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.
23For the reasons noted above, this application shall be dismissed.
ORDER
24As the applicant and/or his representatives have failed to provide submissions, it follows that the evidentiary burden has not been met regarding the issues in dispute.
25The application is dismissed.
Released: May 9, 2024
__________________________
Brett Todd
Vice-Chair