Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-013044/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:
Nirusha Sasitharakumar
Applicant
and
Unifund
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Harkamal Hehar, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nirusha Sasitharakumar (the “applicant”) was involved in an automobile accident on April 26, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Unifund (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 $1,382.48 for chiropractic treatment, proposed by Onelife Wellness Centre in a treatment plan/OCF-18 (“plan”) denied on August 28, 2020?
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?
RESULT
3The application is dismissed. As the applicant has failed to make submissions for this hearing, I find that she has not met her evidentiary burden with regard to the benefits 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 and her legal counsel attended a case conference held regarding this application on September 29, 2022. This case conference resulted in a Case Conference Report and Order (“CCRO”) released on December 14, 2022 that established a timeline for productions. Initial productions were to be exchanged no later than 45 days from the case conference, with additional items to be exchanged no later than 60 days from the case conference, and documents responsive to items already produced to be exchanged 45 calendar days before the date of the hearing, as scheduled by the Tribunal.
7This CCRO also set deadlines for hearing submissions. The order established that the applicant was to file her written submissions and evidence 30 calendar days before the hearing date; the respondent was to file its submissions and evidence 14 calendar days before the hearing; and the applicant was to file reply submissions seven calendar days before the hearing.
8On December 30, 2022, the Tribunal emailed a Notice of Written Hearing (“NOWH”) to both parties that set the written hearing date for September 1, 2023. As a result of the CCRO and the NOWH, the applicant’s written submissions were due on August 2, 2023; the respondent’s written submissions were due on August 18, 2023; and the applicant’s reply submissions were due on August 25, 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.
10There is no indication in Tribunal records that the applicant filed her hearing submissions and evidence in accordance with the timeline established in the CCRO and the NOWH.
11On August 9, 2023 the respondent filed a Notice of Motion (“NOM”) with the Tribunal to have the application dismissed as abandoned. In the alternative, the respondent requested that the Tribunal set aside the current hearing date and reschedule the hearing at “a mutually convenient time for all parties.” The Tribunal declined to adjourn the hearing in a motion hearing held on August 11, 2023 and held that all orders in the CCRO that set this matter down for a hearing would remain in full force and effect.
12The respondent filed its written hearing submissions and evidence on August 18, 2023 in accordance with the deadline established by the CCRO and NOWH.
13According to Tribunal records, neither the applicant nor her legal representative have been in contact with the Tribunal since the case conference on September 29, 2022. Tribunal attempts to contact the applicant via email on August 9, 2023 and August 18, 2023 regarding her missing submissions went unanswered. The applicant also did not reply to the NOWH, nor did she respond to the Motion Order released on August 14, 2023.
14In addition, there is no indication that the applicant contacted the Tribunal to request an extension of the submission timelines as established by the CCRO. There is also 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, she had an obligation under Rule 4.4 of this Tribunal’s Rules to notify the Tribunal with the correct address.
15Given the above timeline of events, 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.
16As a result, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant Has Not Met Her Burden
17I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Accordingly, she has failed to meet her burden to demonstrate entitlement to the benefits claimed.
18As held in Scarlett v. Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate that she is entitled to any claimed benefits.
19The applicant failed to meet this onus as she 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. She also did not file submissions or evidence in the subsequent four months since the hearing date of September 1, 2023, nor did she contact the Tribunal regarding this matter during this period of time. Essentially, the applicant seems to have gone silent on this application since the case conference, held nearly 15 months ago at the time of this writing.
20The respondent filed its submissions and evidence on August 18, 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. The respondent also provided a full defense and evidence involving the issues in dispute.
21For the above reasons, it is clear that the applicant cannot meet her burden in the absence of her submissions and evidence. This application is dismissed.
ORDER
22As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden to establish entitlement to the benefits in dispute.
23The application is dismissed.
Released: January 8, 2024
Brett Todd
Vice-Chair