Citation: Barker v. Economical Insurance Company, 2025 ONLAT 24-002663/AABS

Licence Appeal Tribunal File Number: 24-002663/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:

Adalya Barker

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: No submissions

For the Respondent: Karly Lyons, Counsel

HEARD: By way of written submissions

OVERVIEW

1Adalya Barker (“the Applicant”) was involved in an automobile accident and sought benefits from Economical Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue to be decided in this hearing is:

i. Is the Applicant barred from proceeding to a hearing for non-earner benefits (“NEBs’) because she never attended an insurer’s examination (“IE”) pursuant to section 44 of the Schedule?

ISSUES

3The substantive issues in dispute to be decided in this hearing are:

i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period from March 22, 2022 to February 22, 2024?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,764.36 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated March 10, 2022?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan dated March 29, 2022?

v. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

vi. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant tendered no submissions or evidence and has therefore not met her burden to demonstrate entitlement to the benefits claimed.

5As no benefits are payable, it follows that no benefits were overdue or unreasonably delayed. Thus, no award or intertest are payable.

6The application is dismissed.

ANALYSIS

7The Applicant and Respondent participated in a case conference on June 26, 2024, in which this hearing was scheduled on the consent of both parties.

8Following the case conference, the Tribunal issued a case conference report and order dated July 2, 2024 (“the CCRO”) confirming the details of the hearing such as the deadline to disclose evidence and issue written submissions. The CCRO outlined that the hearing was to proceed in writing at a date set by the Tribunal.

9The Tribunal send a notice of written hearing to the parties via their counsel, on July 4, 2024, stating that the hearing will occur on Friday, March 28, 2025. The Applicant’s initial submissions were due on Wednesday, February 6, 2025. The Respondent’s responding submissions were due by Friday, March 15, 2025.

10On September 16, 2024, the Applicant’s counsel delivered a notice of Removal of Representative to the Respondent and Tribunal. As a result, the Applicant’s counsel was removed from the file.

11Notably, the notice from the Applicant’s representative indicated that it was delivered to the Applicant via email to an email that is not listed with the Tribunal, as well as at an address in Paris, Ontario. However, the Applicant’s mailing address in the Tribunal file is in North York, Ontario.

12On September 17, 2024, the Tribunal left a voicemail with the Applicant at the number on file with a request to contact the Tribunal and clarify whether she intends to retain new counsel.

13On September 25, 2024, the Tribunal mailed notice of written hearing to the Applicant’s address on file, in North York. That correspondence was returned to the Tribunal on October 4, 2024, because it was undeliverable.

14On October 25, 2024, the Tribunal called the Applicant on the number on file and left a voicemail asking her to update her current address.

15On March 20, 2025, the Tribunal wrote to the parties at their addresses on file. The letter indicated that no submissions were received for the hearing and inquired if any submissions would be tendered.

16On March 20, 2025, in response to the Tribunal’s letter, the Respondent filed a declaration of representative with the Tribunal, updating its counsel’s information. The declaration of representative was delivered to the Applicant on the same day via the email to which the removal of representative was delivered.

17On the same day, March 20, 2025, the Respondent issued written submissions stating that the Applicant failed to tender submissions and evidence, and that the application should be dismissed.

18Also on March 20, 2025, the Tribunal called the Applicant on the number on file and left a voicemail inquiring as to whether she will issue submissions.

19To-date, the Applicant has not responded to the Tribunal’s attempts to contact her. Nor has she or her former representative advised the Tribunal of any change in contact information from the initial application. To-date, no Notice of Withdrawal has been filed with the Tribunal by either the Applicant or her former representative.

20Rule 4.4 of the Licence Appeal Tribunal Rules (“the Rules”) states that a party or a party’s representative must notify the Tribunal and the other parties of their representatives, in writing, as soon as possible, of any change in their contact information.

21Rule 24.4 allows a representative to withdraw their representation. The withdrawal is subject to the representative confirming that the party they were representing has been advised of the withdrawal as representative and that it has complied with the Law Society Act and applicable guidelines and codes of conduct when withdrawing as the party’s representative.

22I find that the Applicant received the notice of written hearing when it was delivered to her representative on July 4, 2024. The notice was sent to her representative as declared at the time the notice was delivered. The Applicant had not provided the Tribunal with a change in representative or change in contact information. I am not dissuaded by the fact that the Applicant’s previous representative sent the notice to the Applicant via contacts that are not the same as those listed in the Tribunal. This is because the Rules do not stipulate that the withdrawal of representative be sent to the contact information on the Tribunal’s file – it is possible that the notice was delivered to the Applicant at a temporary location.

23Additionally, I note that the Tribunal mailed the Applicant notice of the written hearing to the address on file. It has also made attempts to call the Applicant via the telephone number on the application. To-date, no response has been received.

24Pursuant to section 7(2) of the Statutory Powers Procedure Act I will proceed with this hearing as the file has not been closed and I am satisfied that the Applicant had notice of the written hearing when it was delivered to her former counsel by email on July 4, 2024.

25The Applicant bears the onus of demonstrating that her injuries are not a minor injury and subject to the $3,500.00 funding limit. She also bears the onus of demonstrating entitlement to NEBs, the plans in dispute, an award, and interest.

26As no submissions or evidence have been tendered by the Applicant, it follows that the Applicant has not met her onus to demonstrated entitlement to the benefits claimed. It follows that no benefits were overdue or unreasonably withheld, thus no interest or award is payable.

CONCLUSION AND ORDER

27The Applicant tendered no submissions or evidence and has therefore not met her burden to demonstrate entitlement to the benefits claimed.

28As no benefits are payable, it follows that no benefits were overdue or unreasonably delayed. Thus, no award or intertest are payable.

29The application is dismissed.