Licence Appeal Tribunal File Number: 21-004886/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:
Amir Ghavampour
Applicant
and
Aviva Insurance Company of Canada
The Guarantee Company of North America
Respondent
AMENDED DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Roger Sawh, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Amir Ghavampour (the “applicant”) was involved in an automobile accident on January 8, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Guarantee Company of North America (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:
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?
Is the applicant entitled to a medical benefit in the amount of $3,524.66 for chiropractic sessions, proposed by Newmarket Health and Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted June 1, 2019 and denied on June 13, 2019?
Is the applicant entitled to a medical benefit in the amount of $199.96 ($1,299.96 less $1,100.00 approved) for chiropractic sessions, proposed by Newmarket Health and Wellness Centre in a plan submitted November 1, 2019 and denied on November 6, 2019?
Is the applicant entitled to a medical benefit in the amount of $2,486.00 for psychological services, proposed by Imperial Medical Assessments in a plan submitted November 15, 2019 and denied on November 26, 2019?
Is the applicant entitled to a medical benefit in the amount of $282.50 for a psychological services pre-screen, proposed by Imperial Medical Assessments in a plan submitted November 15, 2019 and denied on November 26, 2019?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant liable to pay costs to the respondent?
3In submissions, the respondent added the above request for costs. As Rule 19.2 of the Tribunal’s Rules allows a party to make a request for costs in writing or orally at a case conference or hearing at any time before a decision or order is released, I have added it to the list of items in dispute.
RESULT
4The application is dismissed. As the applicant has made no submissions for this hearing, I find that he has not met his evidentiary burden with regard to the benefits in dispute.
5I find that the applicant is not liable to pay costs to the respondent.
ANALYSIS
Proceeding in the Absence of One of the Parties
6I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.
7Proceeding 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.
8The applicant failed to attend either of the two case conferences held regarding this application on August 26, 2022 and December 9, 2022. The first case conference was adjourned due to the non-attendance of the applicant. The second case conference resulted in the adjudicator denying the applicant’s legal representative’s request for another adjournment and setting the matter down for a written hearing in a Case Conference Report and Order (“CCRO”) dated December 28, 2022.
9This CCRO established production deadlines based on the date of the case conference. Initial productions and other documents not previously disclosed were to be exchanged no later than 60 days from the case conference, with responsive items to be exchanged no later than 120 days from the case conference. The CCRO also set a timetable that ordered the applicant to file his written submissions and evidence 30 calendar days before the hearing date to be scheduled by the Tribunal, the respondent to file its submissions and evidence 14 calendar days before the hearing, and the applicant to file reply submissions seven calendar days before the hearing.
10The applicant’s legal representative withdrew from this matter in email correspondence sent to the Tribunal and the respondent on January 6, 2023. A Tribunal representative spoke to the applicant on January 11, 2023 inquiring if he was seeking new counsel or would be proceeding without representation. The Tribunal followed up this conversation with an email inquiry regarding the same questions on the same day. The applicant replied via email that same day as well. He confirmed that he would be proceeding without representation and provided his current phone number and email address.
11On March 9, 2023, the Tribunal emailed a Notice of Written Hearing (“NOWH”) to both parties that set the written hearing date for August 18, 2023. As a result of the CCRO and the NOWH, the applicant’s written submissions were due on July 19, 2023, the respondent’s written submissions were due on August 4, 2023, and the applicant’s reply submissions were due on August 11, 2023.
12The 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.
13In hearing submissions, the respondent claims to have served its production requests on the applicant on February 7, 2023, in accordance with the CCRO. It also notes that it did not receive the applicant’s production requests by the date established in the CCRO, and that a further email that it sent to the applicant on March 14, 2023 regarding these missing productions went unanswered.
14There is no indication in Tribunal records that the applicant filed his hearing submissions and evidence in accordance with the timeline established in the CCRO and the NOWH. Nor is there any indication that the applicant has been in contact with the Tribunal since the email on January 11, 2023 where he confirmed he would be proceeding with this application without representation.
15Further, there is no evidence 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 to provide the correct address.
16Given the above timeline of events and the applicant’s interaction with the Tribunal regarding this hearing, I am satisfied that the applicant received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
17As a result, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant Has Not Met His Burden
18I 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 to demonstrate entitlement to the benefits claimed.
19As 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.
20The 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 four months since the hearing date of August 18, 2023, nor did he contact the Tribunal with a request for an extension of the submission deadlines.
21The respondent filed its submissions and evidence on August 3, 2023 in accordance with the timeline established in the CCRO and NOWH. In these submissions, the respondent detailed the procedural history of this application and requested that it be dismissed as abandoned.
22I agree with the respondent. This application is dismissed as abandoned.
Costs
23I find that the applicant is not liable to pay costs to the respondent.
24Costs are a discretionary remedy that the Tribunal may impose when it is determined that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, pursuant to Rule 19.1 of the Rules and s. 17.1 of the SPPA.
25Here, the respondent submits that the applicant’s “lack of participation discloses no serious intention to proceed with this application, resulting in prejudice to the [r]espondent.” The respondent makes no further argument on the nature of this prejudice, however, and does not submit a specific amount to be awarded as costs, noting that it requests “an amount the Tribunal sees fit.”
26In general, I concur with the respondent’s submissions on costs. The applicant’s non-attendance at two case conferences and his indication that he would be proceeding with this matter without representation—only to then not engage in the Tribunal process at all from that point forward—certainly demonstrates frivolous conduct that, in my view, could rise to the level of warranting an award for costs.
27However, the respondent has not made thorough submissions regarding its costs request to satisfy the requirements set forth in Rules 19.3 and 19.4. The respondent failed to set out the amount being requested, as mandated by Rule 19.3. The respondent also failed to provide the reasons for the costs request with particulars about the other party’s conduct alleged to be unreasonable, frivolous, vexatious, or in bad faith, as mandated by Rule 19.4.
28For the above reasons, I decline to order that the applicant pay costs to the respondent.
ORDER
29As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden to establish entitlement to the benefits in dispute.
30The applicant is not liable to pay costs to the respondent.
31The application is dismissed.
Released: January 16, 2024
Brett Todd
Vice-Chair