Licence Appeal Tribunal File Number: 21-005180/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:
The Estate of Atchuthamohan Balasingham, deceased
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR: Jeremy A. Roberts
APPEARANCES:
For the Applicant: Ryan O’Connor, Counsel
For the Respondent: Pamela Quesnel, Counsel
Heard by Videoconference: April 8, 2024
OVERVIEW
1Atchuthamohan Balasingham, the applicant, was involved in an automobile accident on February 4, 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 the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the case conference of August 24, 2023, a representative of the Office of the Public Guardian and Trustee appeared and indicated to the Tribunal that on August 3, 2023 it had been appointed by the Oshawa Superior Court of Justice as a litigation guardian for the applicant in relation to a tort action. It had not been retained in relation to this LAT matter.
3On or around October 13, 2023 the Office of the Public Guardian and Trustee hired counsel to represent the applicant in this LAT matter. A Declaration of Representative naming Mr. Ryan O’Connor as representative for the applicant was filed with the Tribunal.
4Shortly thereafter, in October 2023, the applicant passed away. The involvement of the Office of the Public Guardian and Trustee ceased upon the applicant’s death.
5As of April 8, 2024 (the date this hearing began), no one has been formally named as a litigation guardian for the applicant.
ADJOURNMENT REQUEST
6On April 4, 2024 (four days prior to the hearing’s commencement) the applicant’s representative emailed the Tribunal seeking an adjournment of the matter because he did not have authority to represent the applicant in this matter following his passing. This was not a proper adjournment request following the procedure outlined in Rule 16.1 of the LAT Rules because it was not submitted on the proper form.
7At the commencement of the hearing, the applicant’s representative brought forward an oral adjournment request for an unspecified amount of time, arguing the following:
i. The applicant’s representative was retained by the Office of the Public Guardian and Trustee. Because their involvement ceased upon the applicant’s death, it is the applicant’s representative’s view that he no longer has authority to represent the applicant in this matter and cannot make submissions, withdraw the application, or enter into settlement or tolling agreement negotiations with the respondent. With no representative and no applicant present, it would be prejudicial on the applicant to proceed.
ii. The applicant’s sister is currently undertaking the process to be named as litigation guardian by the Court. The length of this process is unknown because it is in the Court’s hands. Once this process is completed, this LAT matter could proceed with the benefit of a proper representative for the applicant.
iii. There is a companion matter coming before the LAT in May 2024. It would be most expeditious for the matters to be combined into a single hearing, thereby producing a more efficient outcome.
iv. Despite Rule 16.2, the LAT has the authority to grant an adjournment under s. 2 of the Statutory Powers and Procedures Act (“SPPA”), which argues that “any rule made by a Tribunal under ss. 17.1(4) or s.25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits”. Per his submission, an adjournment would ensure a just resolution on the merits of the case, as opposed to preventing the applicant from making substantive submissions on the issues. Moreover, he argued that this would be the most cost-effective resolution because it would allow both companion matters to be merged and move forward together.
8The respondent consented to the adjournment request and agreed that the applicant’s representative did not have authority to represent the applicant in this matter or in any negotiations.
9The adjournment request was made orally, so before considering the merits of the request Rule 16.2 requires that I must first be satisfied that there are “compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event.”
10I was not satisfied that the request meets the requirement of Rule 16.2 because the applicant died in October 2023, six months ago. At the time, the applicant was represented by Mr. O’Connor who had filed a Declaration of Representative. The six-month period provided ample time to submit an adjournment request via the proper form as outlined in Rule 16.1. Furthermore, the applicant’s representative informed me that the Court proceeding to have the sister named as litigation guardian has not yet commenced because the applicant’s sister has not yet filed the necessary paperwork. For these reasons, I did not consider the adjournment request on its merits.
11At this stage, I advised the parties that the Tribunal had a Declaration of Representative form from Mr. O’Connor indicating that he was the applicant’s representative and that the matter would proceed with the scheduled hearing. I offered the opportunity to the parties to consider withdrawing the application with a tolling agreement, which they did not pursue.
ISSUES
12The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 16, 2019 to date and ongoing?
ii. Is the applicant entitled to $1,260.00 ($6,350.32 less $5,090.32 approved) for occupational therapy (“OT) services, proposed by 2431512 Ontario Inc., in a treatment plan/OCF-18 (“plan”) dated April 26, 2019?
iii. Is the applicant entitled to $673.00 ($2,390.00 less $1,717.00 approved) for OT services, proposed by 2431512 Ontario Inc., in a treatment plan dated July 10, 2019?
iv. Is the applicant entitled to $4,691.80 for physiotherapy services, proposed by Gibson Wellness Centre, in a treatment plan dated May 6, 2020?
v. Is the applicant entitled to $5,848.27 for OT services, proposed by Gibson Wellness Centre in a treatment plan dated May 6, 2020?
vi. Is the applicant entitled to $13,093.17 for other goods and services, proposed by Gibson Wellness Centre in a treatment plan dated May 6, 2020?
vii. Is the applicant entitled to $2,191.92 ($7,282.24 less $5,090.32 approved) for other goods and services in a treatment plan dated August 20, 2019?
viii. Is the applicant entitled to attendant care benefits in the amount of $10,611.82, provided by HAL Disability Management Inc., dated April 10, 2019?
ix. Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payment to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
13The applicant did not provide any evidence to the Tribunal in support of his claim. As a result, he has not satisfied his burden to demonstrate entitlement to the benefits in dispute.
ANALYSIS
14The applicant did not present evidence or make submissions on the issues in dispute. As it is the applicant’s burden to demonstrate entitlement to the benefits in dispute, and where the Tribunal was not presented with evidence from the applicant in support of his application, it follows that the applicant cannot be successful with his claim. I find that the applicant is not entitled to any of the benefits claimed.
15In accordance with the Case Conference Report and Order, the applicant intended to dispute treatment plans, an income replacement benefit, and an attendant care benefit.
16The respective tests for entitlement to benefits are outlined here:
i. In order to be entitled to treatment plans in accordance with s. 15(1) of the Schedule, the applicant must demonstrate that the proposed treatment plans are reasonable and necessary expenses. This can be demonstrated through the treatment plan and compelling contemporaneous evidence.
ii. Section 5 of the Schedule sets out the criteria for entitlement to an income replacement benefit. To be eligible, an insured person must suffer a substantial inability to perform the essential tasks of their employment. The applicant bears the onus of proving entitlement to an income replacement benefit on a balance of probabilities.
iii. In order to be entitled to an attendant care benefit, in accordance with s.19 of the Schedule, the applicant must demonstrate that the expenses incurred as a result of attendant care services provided by an aide or attendant are reasonable and necessary.
17The applicant made no submissions on the substantive issues. The applicant reiterated his arguments for why an adjournment request was reasonable and merited in this situation. He also argued that the Tribunal does not have authority to dismiss this matter given the lack of an applicant or authorized representative, meaning that an adjournment is the only course of action available.
18While the respondent agreed that without a proper representative for the applicant, this matter could not proceed to a decision, it did acknowledge that without any evidence before it, the Tribunal could not find that the applicant had met his onus in proving entitlement to the disputed benefits.
19I already ruled on the request for an adjournment. Under Rule 16.4 I will not consider any further adjournment requests for the same event that are made for essentially the same reasons.
20It is the applicant’s onus to prove his entitlement to benefits. He has failed to provide any submissions or evidence on the issues in dispute. Therefore, he is not entitled to the treatment plans in dispute, an income replacement benefit, or the attendant care benefit.
ORDER
21The applicant is not entitled to any of the benefits in dispute, as he failed to present a case to support his application.
22The application is dismissed.
Released: July 10, 2024
Jeremy A. Roberts
Vice-Chair