Issaeva v. TD General Insurance Company, 2025 CanLII 13566

Issaeva v. TD General Insurance Company

Citation: Issaeva v. TD General Insurance Company, 2025 ONLAT 23-005257/AABS - A

Licence Appeal Tribunal File Number: 23-005257/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:

Narguiz Issaeva

Applicant

and

TD General Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Stefan Juzkiw, Counsel

For the Respondent: Michael Fox, Counsel Tebogo Fisher-Phala, Counsel

HEARD: By way of written submissions

OVERVIEW

1Narguiz Issaeva, the applicant, was involved in an automobile accident on April 9, 2022, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to chiropractic services, proposed by Dun-Dix Healthcare Clinic Inc., as follows: i. $2,485.12, in a treatment plan dated May 5, 2022; and ii. $1,554.00 in a treatment plan dated February 9, 2023?

ii. Is the respondent entitled to costs because the applicant acted unreasonably, frivolously, vexatiously, or in bad faith?

3The applicant in her submissions advised that she was withdrawing her claims for interest and an award that were set out in the Case Conference Report and Order (“CCRO”) dated January 11, 2024.

RESULT

4The applicant is not entitled to the treatment plans in dispute.

5The respondent is entitled to costs in the amount of $300.00.

PROCEDURAL ISSUES

6I find that the applicant failed to comply with the orders in the CCRO dated January 14, 2024, and therefore the applicant’s submissions are excluded from the hearing record.

Case Conference Report and Order and Submissions

7Both parties participated in a Case Conference on January 5, 2024. On consent, the CCRO dated January 11, 2024, provided for a written hearing.

[8] The written hearing was scheduled for August 16, 2024, with the following deadlines:

1. Applicant’s submissions were due July 16, 2024;
2. Respondent’s submissions were due August 2, 2024; and
3. Applicant’s reply submissions were due August 9, 2024.

9The applicant failed to file any submissions on July 16, 2024.

10As anticipated by the CCRO, the respondent filed its submissions on August 2, 2024.

11The respondent filed a Notice of Motion on August 2, 2024, claiming costs.

12Subsequently, the applicant filed submissions and a reply on August 6, 2024, outlining the basis of her claims with regard to the issues in dispute.

13The applicant provided responding motion submissions on August 14, 2024.

Notice of Written Hearing

14Both parties received a Notice of Written Hearing on January 18, 2024. The Notice advised that non-compliance with the Tribunal’s Rules, orders or directions may result in further procedural orders or directions, including the dismissal of the application. The Notice states that if a party does not comply with the Tribunal’s Rules, orders or directions respect to disclosure, exchange, production or filing, the party may not rely on the document as evidence at the hearing without permission of the Tribunal. Further, it advised that if the parties did not make submissions, the Tribunal may make a decision without their participation, and they would not be entitled to any further notice in the proceeding.

15I find that the parties were made aware of their obligations with regard to filing submissions for the hearing. They were provided with more than eight months notice of such.

Applicant’s Late Submissions – Exclusion from Consideration

16I find that the applicant failed to comply with the orders in the CCRO dated January 14, 2024, and the applicant’s submissions are excluded from the hearing record.

17The respondent submits that the applicant’s application should be dismissed due to the applicant’s disregard of the Tribunal’s orders by failing to submit her submissions in accordance with the timelines set out in the CCRO. The respondent submits that it has been prejudiced by the late filing of the applicant’s submissions as they were provided after it had already filed its submissions. The respondent further submits that the applicant is not entitled to submit her initial submissions and her reply in one document. The initial submissions are where the applicant is to make her arguments, not in her reply, and certainly not after the respondent has filed its submissions.

18The applicant submits that she filed her submissions and reply with the Tribunal on August 6, 2024. The applicant submits that there is no significant delay in filing the submissions as the delay was less than three weeks. The applicant submits that there is no prejudice to the respondent because the applicant is only relying upon the medical records previously provided to the respondent at the time of the Case Conference.

19I find that the applicant failed to comply with the CCRO order as she failed to file submissions on time. The applicant’s submissions were filed 21 days after they were due. Upon review of the applicant’s Response to the Notice of Motion, the applicant provides no explanation for the delay in submitting her submissions and simply minimizes it by stating it was not significant and minor. I find that the applicant has failed to appreciate that 21 days later is not insignificant or minor or that it was after the respondent filed its submissions and has failed to acknowledge that she is in non-compliance with the CCRO.

20I further find that the applicant is not entitled to simultaneously provide her initial submissions and a reply. I agree with the respondent’s position and find the Tribunal’s decision, in A.J. v. Aviva General Insurance, 2020 CanLII 72500 (ON LAT) (“A.J.”), to be persuasive. In A.J., the Tribunal found,

The purpose of the reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument.

I find that the applicant tried to circumvent the Tribunal’s processes by submitting her initial submissions and reply in one document after the respondent had already submitted its submissions in accordance with the timelines set out in the CCRO.

21I find that the parties were informed in the Notice of Written Hearing that the hearing adjudicator may not consider any documents filed after the deadlines ordered by the Tribunal. The applicant did not ask for any extension to file her submissions late. Consequently, I decline to consider any of the applicant’s submissions or adduced evidence, given that they were filed after the deadline established by the CCRO. I am satisfied that there is no breach of the principles of natural justice or procedural fairness, as the applicant was provided with both ample notice and the opportunity to be heard within the Tribunal’s rules-based process. I find despite being afforded the opportunity to provide an explanation for her non-compliance, she has not done so.

ANALYSIS

The applicant is not entitled to the treatment plans in dispute

22I find that the applicant is not entitled to the treatment plans in dispute.

23To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.

24The applicant had the opportunity to file written submissions and evidence in support of her application. She did not do so by the deadline, and for the reasons outlined above, her submissions and evidence are excluded from consideration. Therefore, there is no evidence before me to allow for an analysis to be undertaken regarding the reasonableness and necessity of the treatment plans in dispute.

25I find that the applicant has failed to demonstrate that she is entitled to the treatment plans claimed.

The respondent is entitled to costs

26The respondent is entitled to costs in the amount of $300.00 for the following reasons.

27Rule 19.1 of the Licence Appeal Tribunal Rules, 2023, provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.2 provides that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

28The purpose of Rule 19.1 is to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award and is an exceptional remedy. Rule 19.6 provides that the costs shall not exceed $1,000.00 for each full day of attendance at a motion, case conference or hearing.

[29] As part of its motion dated August 2, 2024, the respondent seeks the following orders for costs: i. $1,000.00, as a result of the frivolous, vexatious, bad faith and abuse of process by applicant’s counsel ii. $1,000.00 for the motion; and iii. $1,000.00 for the written hearing.

30The respondent requests costs in the amount of $3,000.00. The respondent submits that the applicant and her representatives acted unreasonably, frivolously, vexatiously, or in bad faith by ignoring several requests for relevant medical documentation under s. 33 of the Schedule, disregarding the timelines in the CCRO dated January 11, 2024, without warning or explanation, and by prejudicing the respondent by filing the applicant’s submissions three weeks late and after the respondent had already filed its submissions. The respondent also claims that the applicant’s failure to provide her submissions on time, necessitated the motion and it incurred costs that are now being requested. The respondent also claims costs for the written hearing.

31The applicant submits that the respondent has failed to establish that the applicant has acted unreasonably, frivolously, vexatiously or in bad faith. The applicant submits that she filed her submissions and reply with the Tribunal on August 6, 2024, and there is no prejudice to the respondent.

32As a starting point, I have no authority to order costs above the maximum amount provided for in Rule 19.6. I agree with the respondent that the applicant’s late submission of her submissions was unreasonable. Further, the fact that no explanation was provided by the applicant for the delay in providing her submissions is an additional aggravating factor. The applicant’s conduct caused the respondent to incur the costs of bringing a Notice of Motion. I find these factors establish misconduct of sufficient seriousness to warrant costs.

33I order the applicant to pay costs in the amount of $300.00. I find this amount proportionate for her conduct.

Order regarding issues in dispute

34The respondent in its Notice of Motion has asked the Tribunal to order that the applicant is barred from subsequently re-applying for the exact same issues in this application to the Tribunal. The respondent submits that the applicant was non-compliant with the Tribunal’s orders, and therefore should not be permitted to re-submit the same issues in a new application.

35I find that as the Tribunal is a creature of statute, I have no inherent jurisdiction to grant this order. The respondent has not pointed me to any authority that permits me to make such an order.

ORDER

36For the reasons outlined above, I find,

i. The applicant is not entitled to the treatment plans in dispute; ii. The respondent is entitled to costs in the amount of $300.00; and iii. The application is dismissed.