Samuel v. Economical Insurance Company, 2024 CanLII 909

Licence Appeal Tribunal

Citation: Samuel v. Economical Insurance Company, 2024 ONLAT 21-013789/AABS

Licence Appeal Tribunal File Number: 21-013789/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:

Derick Samuel

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

No Submissions Filed

For the Respondent:

Thulasi Kandiah, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Derick Samuel (the "applicant") was involved in an automobile accident on November 18, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Economical 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:

1. 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?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 17, 2020 to November 18, 2022?
3. Is the applicant entitled to $1,050.88 for chiropractic services, proposed by 2430307 Ontario Ltd. in a treatment plan/OCF-18 ("plan") dated March 12, 2021?
4. Is the applicant entitled to $2,100.00 for psychological services, proposed by 2430307 Ontario Ltd. in a plan dated March 12, 2021?
5. Is the applicant entitled to $1,293.80 for chiropractic services, proposed by 2430307 Ontario Ltd. in a plan dated April 9, 2021?
6. Is the applicant entitled to $1,657.86 for psychological services, proposed by 2430307 Ontario Ltd. in a plan dated May 7, 2021?
7. Is the applicant entitled to $3,940.41 for psychological services, proposed by 2430307 Ontario Ltd. in a plan dated May 7, 2021?
8. Is the applicant entitled to $1,050.56 for chiropractic services, proposed by 2430307 Ontario Ltd. in a plan dated May 11, 2021?
9. Is the applicant entitled to $2,000.00 for medical services, proposed by 2430307 Ontario Ltd. in a plan dated May 11, 2021?
10. Is the applicant entitled to $2,894.33 for chiropractic services, proposed by 2430303 Ontario Ltd. in a plan dated June 1, 2021?
11. Is the applicant entitled to $2,000.00 for medical services, proposed by 2430307 Ontario Ltd. in a plan dated June 25, 2021?
12. Is the applicant entitled to $2,000.00 for chiropractic services, proposed by 2430307 Ontario Ltd. in a plan dated July 30, 2021?
13. Is the applicant entitled to $2,641.62 for chiropractic services, proposed by 2430307 Ontario Ltd. in a plan dated August 20, 2021?
14. Is the applicant entitled to $112.11 ($1212.11 less $1100.00 approved) for chiropractic services, proposed by 2430307 Ontario Ltd. in a plan dated May 12, 2021?
15. Is the applicant entitled to $2,227.73 for chiropractic services, proposed by 2430307 Ontario Ltd. in a plan dated November 8, 2021?
16. Is the applicant entitled to $1,690.81 for chiropractic services, proposed by 2430307 Ontario Ltd. in a plan dated March 2, 2022?
17. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
18. Is the applicant entitled to interest on any overdue payment of benefits?
19. 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 issues in dispute.

5I find that the applicant is liable to pay costs of $250.00 to the respondent due to his frivolous conduct in this matter.

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.

8Both parties participated a case conference that was held on November 7, 2022. This resulted in a Case Conference Report and Order ("CCRO") dated January 17, 2023 that set this matter down for a written hearing.

9The CCRO established production deadlines based on the date of the case conference. Initial productions were to be exchanged no later than 60 days from the case conference, with other documents to be exchanged no later than 90 days from the case conference, and 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 her 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.

10On February 2, 2023, the Tribunal emailed a Notice of Written Hearing ("NOWH") to both parties that set the written hearing date for October 6, 2023. As a result of the CCRO and the NOWH, the applicant's written submissions were due on September 6, 2023 and the respondent's written submissions were due on September 22, 2023. The applicant's reply submissions, if any, were due on September 29, 2023.

11The 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.

12There is no indication in Tribunal records that the applicant filed submissions and evidence in accordance with the Tribunal as of the dates established by the CCRO and the NOWH. There is also no indication in Tribunal records that the applicant or his legal representative contacted the Tribunal at any time following the case conference, such as to request an extension of hearing submission deadlines.

13Further, there is 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.

14Given the applicant's attendance at the case conference and the absence of any notation in Tribunal records regarding difficulties 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.

15For the above reasons, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.

The Applicant Has Not Met His Burden

16I 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.

17As 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.

18The 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 three months since the hearing date of October 6, 2023, nor did he contact the Tribunal with a request for an extension of the submission deadlines.

19The respondent filed a Notice of Motion ("NOM") on September 12, 2023 requesting that this application be dismissed as abandoned. This motion was scheduled by the Tribunal to be heard with the substantive matters at the written hearing. The applicant failed to file submissions in response to this NOM.

20The respondent also filed submissions and evidence on September 21, 2023 for the written hearing, in accordance with the timeline established by the CCRO and NOWH.

21I agree with the respondent. This application is dismissed.

Costs

22I find that the applicant is liable to pay $250.00 in costs to the respondent, due to his frivolous conduct with regard to this hearing.

23Costs 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, pursuit to Rule 19.1 of the Rules and s. 17.1 of the SPPA.

24In this instance, the respondent submits that the applicant should be found liable to costs of $1,000.00 due to his non-compliance with the CCRO. The respondent alleges that this conduct necessitated it to file a motion seeking dismissal and to prepare hearing submissions in the absence of any materials from the applicant.

25In addition, the respondent alleges in submissions that the applicant's counsel did not respond to its email reminder on September 7, 2023 that submissions were due on the previous day. It also claims that the applicant's representative replied to the motion on September 12, 2023, but only with regard to some confusion about the representative on file. (A Declaration of Representative form was added to Tribunal records on September 14, 2023, although this listed the same representative who appeared at the case conference for the applicant.)

26In the absence of submissions to the contrary by the applicant, I accept the account of the respondent regarding these email exchanges. These claims were also substantiated in the respondent's submissions with attached copies of the correspondence in question.

27I agree with the respondent regarding a costs award, at least in part.

28In accordance with the criteria set forth in Rule 19.5, I find that the applicant's frivolous conduct interfered with the Tribunal's ability to carry out a fair, efficient, and effective process and prejudiced the respondent. Although the threshold required for costs is high, the applicant meets this criteria given his disregard for Tribunal orders in not only failing to file submissions and evidence, but in failing to communicate with the Tribunal and the respondent regarding late submissions and the applicant's intentions with regard to proceeding with this application.

29However, I find the $1,000.00 in costs to be excessive. Even though Rule 19.6 establishes that a maximum of $1,000.00 can be awarded in costs for each full day of attendance at a motion, case conference, or hearing, I do not view the applicant's conduct in this matter to be significant enough to warrant such a significant amount. In my view, an award of this amount would have an unduly negative impact on individuals accessing the Tribunal system, an important consideration as noted in Rule 19.5.

30I considered the Tribunal decisions on costs referenced by the respondent in its submissions. However, I note that I am not bound by other decisions of this Tribunal, and exercise my own discretion regarding this costs award and the specific amount of such an award.

31For the above reasons, I order that the applicant pay $250.00 in costs to the respondent, pursuant to Rule 19 and s. 17.1 of the SPPA.

ORDER

32As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.

33The applicant is liable to pay $250.00 in costs to the respondent.

34The application is dismissed.