Licence Appeal Tribunal File Number: 23-003852/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:
Mohammed Hashim
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATORS:
Tami Cogan
Hande Bilhan
APPEARANCES:
For the Applicant:
Mohammed Hashimi, Applicant (not present)
For the Respondent:
Marc Bedard, Representative
Joanne Witt, Counsel
Heard by Videoconference
April 2, 2024
OVERVIEW
1Mohammed Hashimi, the Applicant, was involved in an automobile accident on October 20, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant did not attend the videoconference hearing. No explanation was provided and efforts by the Tribunal to reach the applicant were unsuccessful. After setting the matter down for 30 minutes to allow the applicant an opportunity to join, we proceeded with the hearing without the applicant.
3The Tribunal may proceed with an electronic hearing without the applicant present, pursuant to s. 7(3) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), provided that it is satisfied that the absent party received a Notice of Electronic Hearing (“NoEH”) that complies with ss. 6(5)(c) of the SPPA.
4Both parties participated in a case conference that was held on October 30, 2023. Although the applicant did not attend the case conference, they were represented by counsel. This resulted in a Case Conference Report and Order (“CCRO”) dated November 16, 2023, that set this matter down for a videoconference hearing.
5On December 1, 2023, a NoEH was sent via email to the applicant, the applicant’s counsel, the respondent and the respondent’s counsel, to set the videoconference hearing date. As a result of the timeline established in the CCRO and the NoEH, the parties were ordered to exchange a single PDF copy of the evidence (i.e., document briefs) and authority briefs, indexed, tabbed and consecutively page numbered that they plan to use at the hearing, and file an electronic copy only, with the Tribunal, no later than 14 calendar days before the hearing.
6On March 1, 2024, the applicant’s counsel removed himself from the record. The Tribunal sent follow-up correspondence to the applicant on March 1, March 13, and March 26 to confirm the applicant was aware of the upcoming hearing and the necessity to file evidence in advance of the hearing.
7The applicant failed to file submissions and evidence in accordance with the dates established by the CCRO and the NoEH. There is no indication in Tribunal records that the applicant replied to the Tribunal’s attempts to contact him.
8Further, there is no indication that the applicant’s contact information was incorrect in Tribunal records. If this changed during the course of the application, he had an obligation under Rule 4.4 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) to provide the correct contact information to the Tribunal in writing.
9Given the above, we were satisfied that both parties received notice for this hearing as required by ss. 6(1), 6(2) and 6(5) of the SPPA. We found that the Tribunal has met its notice obligations and we proceeded with this electronic hearing.
ISSUES
Preliminary Issues:
10At the outset of the videoconference hearing, we heard a motion filed by the respondent on March 25, 2024.
11The orders sought by the respondent were as follows:
An order dismissing the application as abandoned pursuant to Rule 3.4(d) of the Rules; and
An order for costs in the amount of $3,000.00 pursuant to Rule 19.1.
Preliminary Issue Results
12We denied the respondent’s motion to dismiss the application as abandoned. We proceeded with the hearing on its merits.
13The respondent’s motion for costs is denied.
ANALYSIS
Preliminary Issues:
Dismiss application as abandoned.
14The respondent’s motion to dismiss the application as abandoned is denied.
15The respondent filed a motion on March 25, 2024, and had served the applicant. The Tribunal ordered the motion to be heard at the onset of the hearing. The applicant was invited to file responding submissions by March 28, 2024. No response or submissions were received from the applicant.
16The respondent submits that the applicant’s lack of participation throughout the Tribunal’s process demonstrates the application was filed in bad faith and should be dismissed as abandoned.
17We acknowledge that the applicant has not participated in the Tribunal process. However, we have not heard any evidence upon which we can make the determination on the applicant’s intentions. We do not find the respondent will be prejudiced by the hearing proceeding on its merits. For these reasons, the respondent’s motion to dismiss the application as abandoned is denied.
18The hearing will proceed.
Substantive Issues:
19The 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 Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit for a minor injury?
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week for the period from November 2, 2020, to-date and ongoing?
Is the applicant entitled to medical benefits proposed by Body Dynamics Inc. as follows:
(a) $4,141.35 for a physiotherapy treatment plan dated October 28, 2020;
(b) $197.23 ($1,298.59, less $1,101.36 approved by the respondent) for a physiotherapy treatment plan dated January 21, 2021;
(c) $2,219.74 for a psychological treatment plan dated May 5, 2021;
(d) $3,839.01 for a physiotherapy treatment plan dated March 18,2021; and,
(e) $1,987.77 for a chiropractic treatment plan dated September 8, 2023?
Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
Substantive Issues Result
20The applicant is not entitled to the benefits claimed in his application.
21The applicant is not liable to pay costs to the respondent.
ANALYSIS
The Substantive Issues
22The applicant has not met his onus to prove entitlement to accident benefits.
23We did not hear submissions from the applicant. The applicant did not file any submissions or evidence with regard to this application.
24We find that the applicant has not met his evidentiary burden on a balance of probabilities. Therefore, he is not entitled to the benefits claimed in his application.
Costs
25The respondent’s motion for costs is denied.
26The respondent seeks costs in the amount of $3,000.00 pursuant to Rule 19. The respondent submits the applicant has acted unreasonably in failing to participate in the Tribunal process. The application is frivolous, vexatious and made in bad faith. The respondent has incurred expenses as a result of the applicant’s actions which should be, in part, reimbursed.
27The applicant did not make any submissions.
28Pursuant to Rule 19.1., where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.
29In deciding whether to order costs, the Tribunal considers all relevant factors including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.
30We note that the applicant was represented for the majority of the time since the application was filed, however, one month prior to the hearing the applicant became self-represented. The applicant bears the onus of proving entitlement to accident benefits. This onus includes putting forth evidence in support of their position. Although the applicant did not disclose productions in accordance with the Tribunal’s orders, it is the applicant who suffers the consequence when those productions cannot be relied on as evidence in support of their entitlement.
31Failing to file submissions and attend the hearing in and of itself, is not necessarily unreasonable, frivolous, vexatious, or in bad faith. His failure to provide submissions and his non-attendance did also not interfere with the Tribunal’s ability to carry out a fair, efficient, and effective process. Lastly, we put significant weight on the potential impact an order for costs would have on individuals accessing the Tribunal system in the future.
32For these reasons, we deny the request for a cost order. The applicant is not liable for costs to the respondent.
ORDER
33For the reasons outlined above, we find that:
i. As the applicant has not met his evidentiary burden, his application for benefits is denied and his application is dismissed.
ii. As the respondent has not met the test for a cost order, the applicant is not liable to pay costs to the respondent.
Released: June 19, 2024
Tami Cogan
Adjudicator
Hande Bilhan
Adjudicator