Licence Appeal Tribunal File Number: 22-001251/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:
Balachandran Santhira
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Ken Yip, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Balachandran Santhira (the “applicant”) was involved in an automobile accident on October 11, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). TD General 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 $4,609.24 for chiropractic services, proposed by Gibson Wellness Centre in a treatment plan/OCF-18 (“plan”) dated January 19, 2020?
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.
6The applicant failed to attend either of the two case conferences held regarding this application.
7The case conference on November 29, 2022 was adjourned due to the applicant’s inability to attend as a result of what the adjudicator determined to be “exceptional circumstances,” as explained during the proceeding by the applicant’s legal representative. The applicant was also unable to attend the resumption of the case conference on January 16, 2023 for the same reason as noted above. Another request for an adjournment made by the applicant’s legal representative was denied, however, and at this case conference the issues in dispute were set down for a written hearing.
8In the resulting Case Conference Report and Order (“CCRO”) that was released on February 18, 2023, a timeline was set for the exchange of productions and the filing of submissions and evidence for the 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.
9On March 16, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for October 20, 2023. As a result of the CCRO and the NoWH, the applicant’s written submissions were due by September 20, 2023 and the respondent’s written submissions were due by October 6, 2023. The applicant’s reply submissions, if any, were due by October 13, 2023.
10The 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.
11The 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 immediate response to an email that was sent to both parties on November 3, 2023 regarding these submissions. The respondent replied to this email on November 6, 2023, however, to note that the applicant’s counsel indicated that the applicant did not wish to withdraw his application, but would also not be providing any submissions. The applicant’s counsel then replied on November 7, 2023, to confirm this assessment of the situation and also to note that counsel had been unable to obtain written instructions from the applicant on either proceeding with the application or withdrawing it.
12I am satisfied that the applicant received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. The applicant’s legal representative participated in both case conferences held regarding this matter and was in contact with the Tribunal and the respondent, as noted above.
13I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
14As a result, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant Has Not Met His Burden
15I 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.
16As 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.
17The 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 20, 2023, nor did he contact the Tribunal during this period of time to request an extension to the submission deadlines.
18The respondent filed its submissions on October 6, 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 an argument and evidence regarding the MIG determination and the treatment plan in dispute.
19I agree with the respondent. The applicant has failed to provide submissions and evidence. As a result, he cannot meet his onus demonstrating that he warrants removal from the MIG and that he is entitled to the disputed treatment plan. This application is dismissed.
ORDER
20As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.
21The application is dismissed.
Released: January 9, 2024
__________________________
Brett Todd
Vice-Chair