Gill v. Intact Insurance Company, 2024 CanLII 872

Citation: Gill v. Intact Insurance Company, 2024 ONLAT 21-011627/AABS

Licence Appeal Tribunal File Number: 21-011627/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:

Gurdhir Gill

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: No Submissions Filed

For the Respondent: Theomarcus Giannou, Counsel

HEARD: By way of written submissions

OVERVIEW

1Gurdhir Gill (the "applicant") was involved in an automobile accident on May 23, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Intact Insurance Company (the "respondent") denied a claim for certain benefits. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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?
2. Is the applicant entitled to $1,297.69 for physiotherapy services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 dated October 22, 2019 and denied November 5, 2019?
3. Is the applicant entitled to $2,460.00 for physiotherapy services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 dated December 12, 2019 and denied December 20, 2019?
4. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Community Health & Counselling Services Inc. in a treatment plan/OCF-18 dated August 21, 2020 and denied September 2, 2020?
5. Is the applicant entitled to $2,180.00 for a psychological assessment, proposed by Community Health & Counselling Services Inc. in a treatment plan/OCF-18 dated January 16, 2020 and denied March 31, 2020?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The application is dismissed. As the applicant has failed to make submissions for this hearing, I find that he has not met his evidentiary burden with regard to the issues in dispute.

ANALYSIS

Proceeding in the Absence of One of the Parties

4I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.

5Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 ("SPPA"), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.

6Both parties attended a case conference held with regard to this application on January 25, 2023. As the parties could not resolve this matter, it was set down for a written hearing with the Tribunal.

7In the resulting Case Conference Report and Order ("CCRO") that was released on February 21, 2023, a timeline was set for the exchange of productions and the filing of submissions and evidence for the written hearing. The CCRO established that the applicant was to file his written submissions and evidence for the hearing 30 calendar days before the hearing date to be scheduled by the Tribunal, with the respondent's submissions and evidence due 14 calendar days before the hearing date. The applicant's reply submissions, if any, were to be filed seven calendar days before the hearing date.

8On March 24, 2023, the Tribunal emailed a Notice of Written Hearing ("NoWH") to both parties that set the written hearing date for October 27, 2023. As a result of the CCRO and the NoWH, the applicant's written submissions were due to be filed by September 27, 2023 and the respondent's written submissions were due by October 13, 2023. The applicant's reply submissions, if any, were due by October 20, 2023.

9The NoWH also included the provisions that the hearing adjudicator may not consider documents filed after deadlines ordered by the Tribunal, and that the Tribunal may make a decision without the participation of one or both parties if submissions are not filed.

10On July 10, 2023, a representative of the applicant's legal firm notified the Tribunal and the respondent that it was no longer representing the applicant in this matter. On September 28, 2023, the Tribunal contacted the parties to note that written submissions had not been received from either the applicant or the respondent.

11Following an email on October 2, 2023 from the applicant's former representative that attached the July 10, 2023 letter as reminder of its withdrawal, the Tribunal reached out directly to the applicant via email on October 4, 2023 to inquire about the status of this application and requesting a response by October 6, 2023. On October 11, 2023, the Tribunal again contacted the applicant by email about the status of this application. Both the CCRO and the NoWH were attached to this email. The Tribunal requested an update from the applicant by October 13, 2023.

12According to Tribunal records, the applicant failed to respond to any of the above attempts at communication. The applicant also failed to file his hearing submissions and evidence in accordance with the timeline established by the CCRO and the NoWH.

13There is no indication that the applicant has been in contact with the Tribunal since the case conference held on January 25, 2023. There is also no indication that the applicant's contact information changed or was otherwise incorrect in Tribunal records. If the applicant's address differed from what was provided to the Tribunal, he had an obligation under Rule 4.4 of this Tribunal's Rules to provide the correct address.

14I am satisfied that the applicant received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. Although I am prepared to provide some latitude for a self-represented party, as of this writing the applicant has seemingly taken no action during the five months that he has had to address the loss of his previous legal representation. The applicant has failed to reply to multiple Tribunal attempts to determine his intentions in regard to proceeding with this application. There is also no indication of any difficulties that would lead me to believe that there were communication issues between the Tribunal and the applicant. At any rate, and as noted above, it is the applicant's obligation under Rule 4.4. to update the Tribunal with any address changes.

15I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.

16As a result, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.

The Applicant Has Not Met His Burden

17I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Accordingly, he has failed to meet his burden regarding the issues in dispute.

18As 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.

19The applicant failed to meet this onus as he did not file written submissions or evidence with the Tribunal in accordance with the timeline established by the CCRO and the NoWH, as noted above. He also did not file submissions or evidence in the subsequent two months since the hearing date of October 27, 2023, nor did he contact the Tribunal during this period of time to explain why his submissions had not been filed or to request an extension to the submission deadlines. As noted above, the applicant also failed to respond to multiple Tribunal attempts to contact him regarding the status of this application.

20The respondent filed a Notice of Motion ("NoM") on October 16, 2023. This NoM detailed the procedural history of this application, as already recounted above, and requested that the application be dismissed as abandoned. The Tribunal ordered this motion to be heard at the already scheduled written hearing.

21While I take no issue with the respondent's chronicling of events, I find it unnecessary to provide a ruling on the abandonment of this application as the applicant has failed to provide submissions and evidence for the hearing despite the opportunity to do so. As a result, the applicant cannot meet his onus demonstrating that he warrants removal from the MIG and entitlement to the other benefits in dispute, regardless of whether he is found to have abandoned his application.

22For the above reasons, this application is dismissed.

ORDER

23As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.

24The application is dismissed.