Licence Appeal Tribunal File Number: 21-015374/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:
Valentino Maggio
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
David E. W. Koots, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Valentino Maggio (the “applicant”) was involved in an automobile accident on July 9, 2021 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:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 15, 2021, to December 21, 2021?
Is the applicant entitled to $2,200.00 for chiropractic physiotherapy services from York Medical Centre proposed in a treatment confirmation form (OCF-23) dated July 14, 2021?
Is the applicant entitled to $1,250.28 for chiropractic and massage therapy services from Pain Rehabilitation Clinic proposed by M. Rastogi, physiotherapist, in a treatment plan (OCF-18) dated October 6, 2021?
Is the applicant entitled to $2,300.56 for chiropractic therapy services from Pain Rehabilitation Clinic proposed by Dr. Bui, chiropractor, in a treatment plan (OCF-18) dated October 8, 2021?
Is the applicant entitled to $2,200.00 for an attendant care assessment at Pain Rehabilitation Clinic, proposed by Dr. Bui in a treatment plan (OCF-18) dated September 13, 2021?
Is the applicant entitled to $200.00 for preparation of an OCF-3 disability certificate by Dr. Bui dated July 12, 2021?
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 the first case conference held regarding this application on September 8, 2022, which resulted in it being adjourned. His legal representative was in attendance. The applicant did attend the resumption of the case conference on November 29, 2022, along with the same legal representative.
7As the parties were unable to resolve the issues in dispute, the matter was set down for a written hearing in the resulting Case Conference Report and Order (“CCRO”) that was released on January 30, 2023. This 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 February 27, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for October 13, 2023. As a result of the CCRO and the NoWH, the applicant’s written submissions were due by September 13, 2023 and the respondent’s written submissions were due by September 29, 2023. The applicant’s reply submissions, if any, were due by October 6, 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.
10The applicant failed to file his hearing submissions and evidence in accordance with the timeline established by the CCRO and the NoWH. Tribunal records note that the applicant failed to respond to an email sent to the applicant’s legal representative on October 4, 2023 regarding these missing submissions and inquiring about the status of this application.
11There is no indication that the applicant has been in contact with the Tribunal at any time since the parties were canvassed about hearing dates on February 27, 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.
12Given the applicant’s participation in the case conference held November 22, 2022, the later attempt by the Tribunal to contact the applicant regarding the status of this application, and no indication of any issues with the applicant’s contact information, 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.
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 more than two months since the hearing date of October 13, 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.
17The respondent filed its submissions on September 29, 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 further argued that the applicant should be barred from filing his initial submissions in place of reply submissions that were due October 6, 2023, as this would “constitute a de facto adjournment” of the written hearing. It relied on A.J. v. Aviva General Insurance, 2020 CanLII 72500 (ON LAT), a decision of the Tribunal that barred evidence introduced as part of reply submissions.
18I agree with the respondent, in part. I concur with the respondent’s argument that the applicant is not able to meet his burden in the absence of his submissions and evidence and dismiss this application on this basis. But I decline to provide a ruling on barring the applicant from providing initial submissions in the place of reply submissions. This was an anticipatory argument by the respondent that has since been proven unnecessary, as the applicant did not file any submissions in this matter by the October 6, 2023 reply deadline established in the CCRO.
19For the above reasons, 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