Hussain v. Aviva General Insurance, 2024 CanLII 81195

Citation: Hussain v. Aviva General Insurance, 2024 ONLAT 22-008012/AABS

Licence Appeal Tribunal File Number: 22-008012/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:

Chaudhry Hussain

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Craig Mazerolle

APPEARANCES:

For the Applicant: No submissions

For the Respondent: Branson Wong, Counsel

HEARD: In Writing

OVERVIEW

1Chaudhry Hussain, the applicant, was involved in an automobile accident on July 21, 2017, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In a case conference report and order released on April 3, 2023, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for January 12, 2024. Notice of this written hearing was e-mailed to the parties on May 19, 2023.

3The applicant’s initial submissions were due on December 15, 2023. The applicant has not provided any written submissions to the Tribunal. There has been no motion made by the applicant seeking to extend this deadline.

4The respondent filed submissions seeking a dismissal of the application, pursuant to Rule 3.4 of the Licence Appeal Tribunal Rule, 2023 (the “Rules”). If the Tribunal allowed the applicant to file late submissions, the respondent then alternatively asked for leave to file further submissions and evidence. It also asked for costs in the amount of $1,000.00.

5The respondent sought similar relief in a Notice of Motion (dated December 19, 2023). The applicant did not respond to this motion.

ISSUES

6As listed in the case conference report and order, the issues in dispute are:

i. Is the applicant entitled to medical benefits proposed by HM Medical Network Ltd. as follows:

a) $2,821.60 for a psychological assessment plan dated July 14, 2022; and

b) $2,821.60 for a chronic pain assessment plan dated July 14, 2022?

ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

ANALYSIS

7The applicant has the onus of demonstrating entitlement to the treatment plans, award, and interest in dispute. By not filing any submissions or evidence with the Tribunal, I find that the applicant has failed to meet his burden. I further find that the applicant did not file a motion requesting an extension of this deadline.

8I then find that it would not promote an efficient dispute resolution process if the applicant were granted the ability to file submissions at this late date. As such, I will not grant the respondent’s alternative form of relief.

9Considering these findings, I do not find it necessary to address the respondent’s request for a dismissal of the application pursuant to Rule 3.4. Rather, the application is dismissed due to the applicant’s failure to meet his onus of demonstrating entitlement to the treatment plans, award, and interest in dispute.

COSTS REQUEST

10Turning to the costs request, I do not find the respondent has met the high threshold necessary for ordering costs.

11Rule 19.1 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. Rule 19.5 provides a list of factors the Tribunal shall consider when determining whether to order costs (and, if so, how much).

12The respondent supports its request by submitting that the applicant has taken no steps to comply with the deadlines set out in the case conference report and order. It also notes that it reached out to the applicant about the missing submissions, but it did not receive a response. The respondent cited cases from the Tribunal where costs were ordered in response to late-filed submissions.

13I find the respondent has not established that the applicant’s behaviour merits a costs order. Though I recognize that the applicant has breached the deadlines set out in the case conference report and order (a breach that led the respondent to expend resources bringing its motion), I conclude that this behaviour is remedied through this present decision. I also note that costs orders are highly discretionary, so I do not find the case law cited by the respondent is of significant assistance in determining whether to use my authority under Rule 19.1 of the Rules.

ORDER

14As he has made no submissions and tendered no evidence in support of his claims before the Tribunal, I find the applicant has not met his onus to demonstrate entitlement to the disputed treatment plans, award, and interest.

15The applicant’s application is dismissed.

16The respondent’s costs request is denied.