[N.A.] v. Definity Insurance Company
Licence Appeal Tribunal File Number: 23-015569/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:
[NA]
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Imtiaz Hosein, Counsel
For the Respondent: Danielle Gauvreau, Counsel
Heard by Videoconference: February 18, 2025
OVERVIEW
1[NA], the applicant, was involved in an automobile accident on August 29, 2017, 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, Definity Insurance Company, Insurer, 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. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to $10,240.00 for a catastrophic assessment, proposed by Ace Catastrophic Assessments in a treatment plan/OCF-18 (“plan”) submitted December 2, 2022, and denied December 21, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3This application is dismissed.
PROCEDURAL HISTORY
4On June 7, 2024, the Tribunal provided notice of a videoconference hearing to take place on November 25, 2024.
5On November 4, 2024, the Tribunal received a Declaration of Representative form from the applicant’s new counsel, Mr. Hosein.
6The applicant filed a Request for an Adjournment form on November 15, 2024. She was seeking a 2-3 month adjournment. The Tribunal granted this request and the hearing was rescheduled to February 18 to 21, 2025. The parties availability was canvassed and advised the Tribunal that they are available for this new hearing date.
7The case conference order issued by Adjudicator Yarde, dated May 30, 2024, required the applicant to serve and file her brief by January 28, 2025. As of the date of the hearing, February 18, 2025, the applicant had not yet filed a brief. The applicant also did not respond to the Tribunal’s request for a hearing update that was made on February 11, 2025.
8The parties voluntarily agreed to participate at a settlement conference. On January 24, 2025, the Tribunal issues a Notice of Settlement Conference that was scheduled to take place on February 13, 2025. Neither the applicant nor her counsel appeared at the settlement conference. The Tribunal reached out to the applicant’s counsel during the settlement conference but did not receive a response.
ADJOURNMENT REQUEST
9The applicant’s oral request for an adjournment was denied.
10The applicant did not appear at the hearing. Her counsel did appear and made an oral request for an adjournment. He submitted that he was retained three months before the hearing. During these three months he waited to receive the file from previous counsel. He also spoke with the applicant’s treating occupational therapist about six weeks before the hearing, and more recently, spoke with the applicant’s mother a week prior to the hearing. According to counsel, it was at this point that he became aware that the applicant may have capacity issues that prevent her from instructing counsel.
11At the start of the hearing, he asked for the proceeding to be stayed for an indefinite period of time to further investigate his concerns regarding the applicant’s capacity issues and to set up proper circumstances for this matter to proceed. In the alternative, he asked for a 4 to 6 month adjournment to, again, investigate this issue and arrange the circumstances for a hearing.
12The respondent took no position on the applicant’s requests.
13Applicant’s counsel explained that he was not retained directly by the applicant. Instead, the applicant’s mother, who was the litigation guardian with previous counsel in this matter, retained him. This statement is inconsistent with counsel’s initial submission that he only recently learned that the applicant may have issues relating to her capacity. Counsel was asked to explain this inconsistency, but provided no explanation.
14He then explained that he cannot continue to receive instructions from the applicant’s mother because of a possible conflict of interest, but would not explain the nature of this conflict as doing so may result in a violation of attorney-client privilege.
15Rule 16.2 of the Licence Appeal Tribunal Rules (“Rules”) requires oral requests for adjournments to only be made in compelling circumstances where a party could not have known of the circumstances giving rise to the adjournment request prior to the event. In my view, the circumstances leading up to this oral request for an adjournment were foreseeable and do not meet this requirement because counsel was retained by the applicant’s mother who was acting as a litigation guardian and would have known right from the start that the applicant has capacity issues.
16Applicant’s counsel asked for the opportunity to present medical evidence that shows the applicant may have capacity issues. I agreed to this request and directed him to provide medical evidence in support of the adjournment request, which is also permitted under Rule 16.2.
17Applicant’s counsel then stated that he would not provide any medical evidence supporting his adjournment request.
18He subsequently submitted that no evidence was needed to allow his oral adjournment request because he is an officer of the court and his concerns regarding the applicant’s capacity should be accepted at face value.
19Applicant’s counsel then asked to call the applicant’s treating occupational therapist, Ms. Lily Wainer, as a witness to provide testimony on the applicant’s capacity. I allowed this request.
20Applicant’s counsel asked Ms. Wainer if she had any concerns with respect to the applicant’s capacity. The witness answered “yes.” Applicant’s counsel did not ask any further questions and the witness was excused.
21I denied the adjournment request. A previous adjournment was granted on a peremptory basis and applicant’s counsel confirmed his availability for this new hearing date. As such, the applicant had a fair opportunity to present her case or to seek a further adjournment before the hearing.
22At the hearing, the applicant was given a fulsome opportunity to provide medical evidence and witness testimony to establish that this matter should be adjourned. However, the only evidence supporting the applicant’s adjournment request is Ms. Wainer’s confirmation that she has concerns regarding the applicant’s capacity. No other details or context were provided by the witness. In my view, this minimal evidence provides no meaningful insight into whether the applicant may have issues related to capacity, and as such, does not establish, on a balance of probabilities, the concern being raised by counsel. For all these reasons, I denied the adjournment request.
ANALYSIS
23The applicant has the burden of proof to establish her case. She did not file any evidence and made no submissions.
24There is no basis upon which to grant this application. This application is dismissed.
ORDER
25This application is dismissed.
Released: April 3, 2025
Harry Adamidis
Adjudicator