Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-003980/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:
Ronnie C. Sorima
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Natalie Gajewski, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ronnie C. Sorima (the "applicant") was involved in an automobile accident on April 3, 2017 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:
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 $2,460.00 for a total body assessment proposed by Dr. Michael Gofeld in a treatment plan/OCF-18 submitted on September 2, 2021?
Is the applicant entitled to $1,769.24 for a chronic pain assessment proposed by Manvi Aggarwal in a treatment plan/OCF-18 submitted on September 9, 2021?
Is the applicant entitled to $2,460.00 for a psychological assessment proposed by Ana Kozina and Beth Crystal in a treatment plan/OCF-18 submitted on October 5, 2021?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
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 24, 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 23, 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 were not filed.
10The applicant failed to file his hearing submissions and evidence in accordance with the timeline established by the CCRO and the NoWH. Tribunal records indicate that there was no response to an email that was sent to both parties on November 2, 2023 regarding these missing submissions.
11There is no indication that either the applicant or his legal representative has been in contact with the Tribunal at any time since the case conference held on January 24, 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.
12I am satisfied that the applicant received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. Both the applicant and his legal representative participated in the case conference. The Tribunal emailed the applicant about the status of this application. There is no indication of any difficulties contacting the applicant that would lead me to believe that there were communication issues. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
13As a result, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant Has Not Met His Burden
14I 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.
15As 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.
16The 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. Lastly, the applicant did not respond to an email from the Tribunal on November 2, 2023.
17The respondent filed its submissions on October 13, 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 the applicant's failure to provide any submissions or evidence meant that he could not meet his burden. The respondent also provided fulsome submissions and evidence regarding the MIG determination and the other issues in dispute.
18I agree with the respondent. The applicant has failed to provide submissions and evidence. As a result, he has failed to meet his onus demonstrating that he warrants removal from the MIG and that he is entitled to the other benefits in dispute. This application is dismissed.
ORDER
19As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.
20The application is dismissed.
Released: January 9, 2024
Brett Todd
Vice-Chair