Licence Appeal Tribunal File Number: 22-006522/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:
Shannon Kreston O'Brian
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
VICE-CHAIR:
Craig Mazerolle
APPEARANCES:
For the Applicant:
No submissions
For the Respondent:
Monika Korona, Counsel
HEARD: In Writing
OVERVIEW
1Shannon Kreston O'Brian, the applicant, was involved in an automobile accident on July 5, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In a case conference report and order released on April 25, 2023, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for February 2, 2024, with the notice of written hearing e-mailed to the parties on May 11, 2023.
3The applicant’s initial submissions were due on January 3, 2024. The applicant did not provide written submissions to the Tribunal in accordance with this deadline. The applicant submitted an adjournment request form to the Tribunal on January 12, 2024. She is seeking to adjourn the written hearing by 12 weeks.
4The respondent filed submissions with the Tribunal on January 16, 2024, seeking a dismissal of the application.
ISSUES
5As listed in the case conference report and order, the issues in dispute are:
i. 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?
ii. Is the applicant entitled to $2,210.00 for psychological services, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) submitted December 20, 2021 and denied December 23, 2021?
iii. Is the applicant entitled to physiotherapy services, proposed by 101 Physio, as follows:
(a) $2,862.48, in a plan submitted July 12, 2021 and denied July 13, 2021;
(b) $2,342.71, in a plan submitted November 12, 2021 and denied November 22, 2021;
(c) $1,862.52, in a plan submitted January 14, 2022 and denied January 19, 2022; and
(d) $1,742.52, in a plan submitted March 2, 2022 and denied March 3, 2022?
iv. Is the applicant entitled to assessments, proposed by 101 Assessments, as follows:
(a) $2,460.00 for a psychological assessment, in a plan submitted October 4, 2021 and denied October 12, 2021;
(b) $2,460.00 for a cognitive assessment, in a plan submitted November 8, 2021 and denied November 15, 2021; and
(c) $2,460.00 for a neurological assessment, in a plan submitted November 9, 2021 and denied November 15, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
6To start, I will not grant the applicant’s adjournment request.
7The applicant supported her adjournment request by claiming that she served productions on the respondent on January 9, 2024, as such she “requires reasonable time to review and analyse the information in the productions in order to make meaningful submissions that substantiate the case.” She also noted that there was a delay in obtaining these productions, and that this request is the first adjournment request for this matter.
8The respondent does not consent.
9I do note that there was a prior adjournment request from the applicant for an earlier case conference on this file. The applicant also noted a change to the respondent’s representative in her adjournment request, but there was no clear explanation of how this change impacted the adjournment request.
10When considering an adjournment request, the Tribunal considers, amongst other factors: the timeliness of the request and whether the parties have been given the opportunity to canvass their availability; the specific reasons for being unable to proceed on the scheduled date; the desirability of having the matter decided; and the length of the requested adjournment. See: Rule 16.3 of the Licence Appeal Tribunal Rules, 2023 and The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, at para. 37.
11After weighing the factors in Rule 16.3, I am denying the applicant’s adjournment request. The primary reason is that I find this request was not made in a timely fashion. If the applicant was experiencing delays in obtaining these productions, it was incumbent on her to inform the respondent and the Tribunal with a timelier adjournment request. Instead, the applicant’s decision to wait until after her submissions were due to file this request has negatively impacted the Tribunal’s ability to conduct its proceedings in an efficient manner. There is also no evidence provided by the applicant to explain what efforts were made to try and obtain these productions, nor was there any indication of why these productions had to be obtained prior to the drafting of her written hearing submissions. Finally, I also note that the respondent does not consent to this request. Therefore, while I accept that this request is the first for this adjudicative event and that there is prejudice facing the applicant by not granting this request, I will not grant the adjournment request.
12Section 7(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 then states that, if notice of a written hearing has been given to a party who does not then participate in the hearing in accordance with the notice, the Tribunal may proceed with the hearing in the absence of that party’s participation. I am satisfied that the parties received notice of the written hearing, so I shall proceed without submissions from the applicant.
13The applicant has the onus of demonstrating removal from the MIG, as well as the onus of demonstrating entitlement to the medical benefits and interest in dispute. By not filing any submissions or evidence with the Tribunal, I find that the applicant has not met this burden.
ORDER
14As the applicant has made no submissions and tendered no evidence in support of her claims before the Tribunal, she has not demonstrated removal from the MIG, nor has she demonstrated entitlement to the disputed medical benefits and interest.
15The application is dismissed.
Released: October 10, 2024
__________________________
Craig Mazerolle
Vice-Chair