Yasir Abbas v. Certas Home and Auto Insurance Company, 2024 CanLII 86437

Citation: Abbas v. Certas Home and Auto Insurance Company, 2024 ONLAT 23-006783/AABS

Licence Appeal Tribunal File Number: 23-006783/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:

Yasir Abbas

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

VICE-CHAIR: Jeremy A. Roberts

APPEARANCES:

For the Applicant: Yasir Abbas, Applicant (did not attend)

For the Respondent: Zachary Peachey, Counsel

HEARD: by Videoconference: September 3, 2024

OVERVIEW

1Yasir Abbas, the applicant, was involved in an automobile accident on April 19, 2021, 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, Certas Home & Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The three-day hearing was scheduled to commence on September 3, 2024. At the start of the hearing, the applicant did not arrive. I waited 30 minutes for the applicant to join the videoconference before electing to proceed with the hearing.

3When considering how to proceed when an applicant does not attend the hearing, there are several relevant authorities that should be considered. Firstly, Rule 3.7.1 of the Licence Appeal Tribunal Rules (2023) (“LAT Rules”) provides the Tribunal authority (through s. 7(3) of the Statutory Powers Procedure Act (“SPPA”)) to proceed with the hearing in the absence of a party if that party does not arrive at the hearing 30-minutes after the scheduled start time and if that party received proper notice.

4When considering the issue of proper notice, Rules 6.1 and 6.2 of the LAT Rules further set out the process by which the Tribunal may serve a document on a party by regular mail. Lastly, Rule 4.4 requires an applicant to notify the Tribunal promptly of any change in contact information.

5I am satisfied that the Tribunal sent the applicant proper notice of this scheduled hearing date for the following reasons:

i. On February 21, 2024, the Notice of Hearing was mailed to the applicant.

ii. On August 15, 2024 a message seeking an update from the parties on the hearing status was sent by email and regular mail to the applicant. No response was received by the applicant.

iii. On August 28, 2024 a reminder of the hearing was emailed to the applicant.

iv. On August 30, 2024 a second reminder, including the Zoom link, was emailed to the applicant.

v. I am also satisfied that the applicant did not request a change of hearing format on the basis of an alleged significant prejudice within the meaning of s. 6(5)(c) of the SPPA.

6Further, when the applicant did not appear at the videoconference hearing, the CMO attempted to phone the applicant. The CMO was unsuccessful in reaching him.

7Given this, I find that the applicant received sufficient notice of the hearing and chose not to attend.

8Consequently, the hearing proceeded in his absence. The parties received proper notice. The file is over 452 days old. I found that proceeding with the hearing was an efficient and proportional resolution of this dispute.

ISSUES

9The issues in dispute are:

i. 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?

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from April 26, 2021 to date and ongoing?

iii. Is the applicant entitled to $1,300.00 for physiotherapy services, proposed by 2121587 Ontario Inc., in a treatment plan/OCF-18 (“plan”) dated August 5, 2021?

iv. Is the applicant entitled to $3,814.94 for physiotherapy services, proposed by 2121587 Ontario Inc., in a treatment plan dated November 22, 2021?

v. Is the applicant entitled to the assessments proposed by Alliance Diagnostic and Treatment as follows:

a. $1,995.00 for an attendant care in-home assessment, in a treatment plan dated July 5, 2021;

b. $2,200.00 for a physiatry assessment, in a treatment plan dated July 5, 2021; and

c. $2,175.91 for a psychological assessment, in a treatment plan dated September 16, 2021?

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

vii. Is the respondent entitled to costs pursuant to Rule 19 of the LAT Rules?

RESULT

10The 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.

11The respondent is not entitled to costs.

ANALYSIS

12The applicant failed to attend the hearing and failed to present evidence or make submissions. 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.

13In accordance with the Case Conference Report and Order, the applicant intended to dispute the denials of his status under the MIG, his entitlement to an income replacement benefit, and entitlement to several treatment plans.

14The respective tests for entitlement to benefits are outlined here:

i. Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustained impairments that are predominantly minor. An insured may be removed from MIG if they can establish that their accident- related injuries fall outside of the definition of “minor injury” under s. 3(1) of the Schedule, or if under s. 18(2) that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the $3,500.00 limit. The Tribunal has also determined that a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lines with the applicant.

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 the treatment plans in dispute, in accordance with s. 15(1) of the Schedule, the applicant must demonstrate that the proposed treatment plans are reasonable and necessary expenses.

15The respondent submits that the application should be dismissed because the applicant:

i. Did not attend the hearing despite receiving sufficient notice;

ii. Failed to submit a document brief despite receiving the Tribunal’s case conference report and order; and

iii. Failed to attend the hearing and submit evidence in support of his claims. Consequently, he has failed to meet his onus in support of the benefits in dispute. Since neither the applicant nor a representative appeared at the hearing, no submissions or evidence were tendered to prove why the benefits are reasonable and necessary.

16It 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 an income replacement benefits or the treatment plans in dispute and he is subject to the MIG.

Costs

17I find that the respondent is not entitled to costs.

18Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct. The purpose of Rule 19.1 is to deter conduct by parties that is unreasonably, frivolous, vexatious, or in bad faith. This is a high bar for conduct to a costs award and is an exceptional remedy. Rule 19.6 sets out the maximum amount of costs, which shall not exceed $1,000.00 for each full day of attendance at a hearing.

19During closing submissions, the respondent made a request for costs, arguing that the applicant’s non-attendance at the hearing had necessitated the respondent to needlessly prepare briefs and submissions. It argued that it should be entitled to costs amounting to $1,000.00 to account for the work that was put into preparing for the case that appeared to be abandoned by the applicant.

20The applicant was not present at the hearing and made no submissions on this issue.

21In considering this request, I look to Rule 19.5 of the LAT Rules¸ which encourages adjudicators to consider the seriousness of the alleged misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether the party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, and the prejudice to other parties. When considering these factors, I find that the respondent’s case does not meet the high bar required to attract a finding of costs. The applicant’s non-attendance does not prejudice the respondent as the applicant bears the onus in this case. Moreover, the alleged conduct damaged the applicant’s case, not the respondent’s. I find that none of the alleged behaviour rises to the level of unreasonable, frivolous, vexatious, or in bad faith and costs are not merited.

ORDER

22The applicant is not entitled to any of the benefits in dispute, as he failed to attend the hearing or present a case to support his application.

23The respondent is not entitled to costs.

24The application is dismissed.

Released: September 9, 2024

__________________________

Jeremy A. Roberts

Vice-Chair