Citation: Subramaniam v. Aviva Insurance Company, 2024 ONLAT 21-003957/AABS

Licence Appeal Tribunal File Number: 21-003957/AABS

In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Ansugan Subramaniam

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Raj Bhangal, Student-at-Law

For the Respondent:

Karanveer Padda, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ansugan Subramaniam (the “applicant”), was involved in an automobile accident on February 18, 2019, 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 Aviva Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline?

ii. Is the applicant entitled to the assessments and services proposed by Downsview Healthcare Inc., as follows:

i. $142.56 for chiropractic services in a treatment plan (the “OCF-18”) submitted on April 16, 2019, and denied on April 17, 2019;

ii. $1,830.08 for chiropractic services, in an OCF-18 submitted on May 16, 2019, and denied on May 23, 2019;

iii. $1,395.04 for chiropractic services, in an OCF-18 submitted on December 11, 2020, and denied on December 21, 2020;

iv. $12,918.49 for various medical services and assessments, in an OCF-18 submitted on January 6, 2021, and denied that same day; and

v. $2,000.00 for a chronic pain assessment, in an OCF-18 submitted on December 13, 2019, and denied on December 20, 2019?

iii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant remains in the MIG and is not entitled to any of the disputed OCF-18s. The respondent is not liable to pay an award and no interest is payable.

PROCEDURAL ISSUES

The respondent seeks to strike the applicant’s submissions in their entirety and asks the Tribunal to dismiss this matter with costs

4I dismiss the respondent’s motion to strike the applicant’s submissions and deny the respondent’s request for costs.

Background

5This matter has an extensive procedural history. In my view, it is contextually helpful to document the events leading up to the respondent’s motion before addressing the respondent’s requests.

6The applicant requested, with the consent of the respondent, a change in hearing format from videoconference to written on November 30, 2022. The Tribunal’s order granting the applicant’s motion, which was issued to both parties on December 2, 2022, specified that the applicant’s submissions were due 30 days before the hearing date. The respondent’s submissions were ordered 14 days before the hearing, and the applicant’s reply was due seven days before the hearing. As per Common Rule 2.7 of the October 2017 Common Rules of Practice and Procedure for the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (the “Common Rules”), the reference to “day” in the motion order is interpreted as a calendar day.

7Notice of the written hearing was subsequently issued to both parties on February 23, 2023. That notice established the written hearing date as October 13, 2023. The Tribunal sent the parties a reminder on September 20, 2023, that the applicant’s submissions were due 30 days prior to the hearing, and that those submissions had not yet been received. A second reminder about the applicant’s overdue submissions was sent to the parties on September 27, 2023.

8The respondent filed its written submissions with the Tribunal on September 27, 2023, which complied with the due date set out in the aforementioned motion order. The applicant subsequently filed his initial written submissions the following day on September 28, 2023, which did not comply with the Tribunal’s order.

9On October 2, 2023, the applicant filed a motion that requested the written hearing be adjourned to a later date so the parties could file their respective submissions on the applicant’s initial written submissions (i.e., a response and a reply). The applicant also requested the submission deadlines be extended to allow a response to the applicant’s initial written submissions, and to accommodate a reply from the applicant. The Tribunal issued its order on the applicant’s motion on October 11, 2023. That order did not consider the applicant’s request to adjourn the written hearing because the request was not filed on the proper form as required by Rule 16 of the Licence Appeal Tribunal Rules (the “LAT Rules”). The Tribunal denied the remainder of the applicant’s motion.

10The respondent’s motion, filed on October 3, 2023, remains before the Tribunal. I shall address that now.

The respondent has not demonstrated that the applicant abandoned his application

11I find the applicant has not abandoned his application as submitted by the respondent.

12Rule 3.4 of the LAT Rules provides the grounds for dismissing an application without a hearing. Those grounds include:

i. The appeal is frivolous, vexatious, or commenced in bad faith;

ii. The appeal relates to matters that are outside the Tribunal’s jurisdiction;

iii. The statutory requirements for bringing the appeal have not been met; or

iv. The applicant is found to have abandoned the proceeding.

13The respondent requests that the Tribunal dismiss this matter without a hearing pursuant to Rule 3.4 (d) of the Common Rules, which pertains to abandonment. For clarity, I find the correct version of the Rules to apply here is the LAT Rules, as LAT Rule 3.8 specifies that Rule 3 applies to all appeals effective August 21, 2023.

14The respondent submits the applicant effectively abandoned the proceedings by failing to produce submissions or evidence; failing to show reasonable attempts to obtain productions; and failing to provide an explanation for this conduct. The respondent’s motion explains that the applicant did not file his written submissions 30 days before the scheduled hearing date as ordered by the Tribunal. The respondent emphasizes that its submissions complied with the ordered due date, and that at the time it filed and served its submissions, the applicant’s written submissions and evidence remained outstanding. The respondent contends that the applicant’s conduct prevented it from knowing the case against it. The respondent relies on Certas Direct Insurance Co. v. Gonsalves 2011 ONSC 3986 (“Gonsalves”) to show that procedural fairness requires that the respondent have an opportunity to be heard and be able to respond to the position taken against it. The respondent adds that the applicant has not sought the Tribunal’s consent to rely on any documentary evidence as he is required to do by Common Rule 9.4.

15The applicant argues it was afforded inadequate notice (i.e., one day) to prepare a response to the respondent’s motion. While the applicant concedes he did not file his initial written submissions on time, he explains this was inadvertently owing to diarizing the incorrect due date, and that he was not provided with any reminder that his written hearing submissions were overdue until September 20, 2023. The applicant adds that his counsel was precluded from immediately acting on this reminder because he was out-of-country at the time and attended a three-day videoconference hearing for a different Tribunal matter immediately upon his return to Canada. The applicant maintains that his initial written submissions were subsequently filed on September 28, 2023—one day after receiving the respondent’s submissions and a second missed deadline reminder from the Tribunal. As such, the applicant denies he has abandoned his appeal, and submits he remains engaged in this matter. The applicant asserts it would be “highly” prejudicial to dismiss his application without a hearing, and that doing so would be contrary to the “consumer protection” spirit and purpose of the Schedule per Smith v. Co-operators General Insurance Co., 2002 SCC 40 (“Smith”).

16In my view, the respondent has not shown the applicant has abandoned his appeal. While I accept the respondent had grounds for believing the applicant had abandoned his application at the time the respondent submitted its written hearing submissions, I find that the applicant’s subsequent filing of its initial written submissions—which occurred prior to the respondent filing its motion—demonstrates the applicant remained engaged in pursuing his claim. I therefore decline to dismiss this matter as abandoned.

The respondent is not entitled to costs

17I find the respondent has not demonstrated that costs should be awarded in this matter.

18Rule 19.1 allows a party to request the Tribunal make an order for costs where another party to the proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Further, per Rules 19.3 and 19.4, the party making the request must set out the amount being requested, the reasons for the request, and the particulars of the other party’s conduct that are alleged to meet the threshold specified at Rule 19.1.

19The respondent requests $2,000.00 in costs and submits the applicant acted unreasonably, frivolously, and/or in bad faith by bringing his application and then failing to serve and file his submissions and evidence.

20The applicant argues his conduct was “clearly inadvertent” and does not reach the level contemplated by Rule 19. The applicant emphasizes that his counsel made a “very unfortunate” but inadvertent mistake by wrongly diarizing the due date for his initial written submissions, and that this does not constitute conduct that is unreasonable, frivolous, vexatious, or bad faith.

21While the respondent has set out the reasons for his request and the amount being requested, I find the particulars it relies on to show the applicant acted unreasonably, frivolously, or in bad faith, do not reach the threshold of conduct contemplated at Rule 19.1. I accept that the applicant’s failure to serve and file his submissions and evidence in compliance with the Tribunal’s orders was an inadvertent mistake that is distinguished from the higher bar of deliberate misconduct, which would merit an award for costs. I therefore decline to grant the respondent’s request for costs.

ANALYSIS OF SUBSTANTIVE ISSUES

The applicant may not rely on his written submissions

22I decline to consider the applicant’s initial written submissions and evidence.

23Rule 24.2, which applies to all appeals effective August 21, 2023, provides that a party wishing to have a representative must file with the Tribunal, the form for the declaration of a representative (“DOR”) provided on the Tribunal’s website and serve a copy of the form on all the other parties. The Rule goes on to say that the Tribunal will not recognize a representative unless a completed DOR has been filed and served, and that if a party wants to change their representative, the new representative must file a DOR form with the Tribunal and serve a copy on all other parties.

24I find there are two authorized representatives on file for the applicant. The first is Rajwant Bamel, who appears on the application and filed a DOR with the Tribunal on April 1, 2021. The second and most recent representative is Alexei Antonov, who filed a DOR on December 2, 2022.

25In my view, the applicant’s initial written submissions were made on his behalf by neither of these authorized representatives. I find they were made by Raj Bhangal (student-at-law). Mr. Bhangal’s name and signature exclusively appears in the signature block of these submissions. While I accept Mr. Bhangal is employed as a student-at-law with the same firm as Mr. Antonov, I find Mr. Bhangal does not have standing in this matter because I was not pointed to evidence that establishes he filed a DOR prior to completing and filing the applicant’s initial written submissions, or at any time thereafter, as he is required to do by the Rules. As the Tribunal cannot recognize a representative who has failed to file and serve a DOR in accordance with the Rules, it follows that I am unable to consider submissions made on behalf of the applicant by a person who is not recognized by the Tribunal.

26Considering that written submissions were made on behalf of the applicant by an unauthorized representative, I find I cannot consider the applicant’s submissions with respect to the issues in dispute. As 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. In the absence of any submissions or evidence filed by the applicant, I find that the applicant has failed to meet his burden to demonstrate entitlement to the benefits claimed.

Interest

27Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. In this case, there are no overdue benefits, so no interest is payable.

Award

28The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. There are no benefits payable in this case, and the applicant’s award submissions were made by an unauthorized representative and therefore cannot be considered. As such, the applicant has failed to show the respondent is liable to pay an award.

ORDER

29The applicant remains in the MIG and is not entitled to any of the disputed OCF-18s. The respondent is not liable to pay an award and no interest is payable. The application is dismissed.