Licence Appeal Tribunal File Number: 23-010141/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:
Margarita Hankin
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Mariana Slomyanski, Counsel
For the Respondent:
Ibrahim Farag, Counsel
Geoffrey Keating, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Margarita Hankin, the applicant, was involved in an automobile accident on January 24, 2019, 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, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
NOTICE OF HEARING WAS PROVIDED
2The applicant did not serve or file written hearing submissions. Following the Tribunal’s inquiry sent to the parties on September 24, 2024, the respondent filed its submissions on September 26, 2024, one day before the date of the written hearing, scheduled for September 27, 2024. No explanation was provided by either party and as set out above, no submissions were received from the applicant.
3Both parties participated in a case conference that was held on February 6, 2024. This resulted in a Case Conference Report and Order (“CCRO”) dated February 13, 2024, that set this matter down for a written hearing. On February 13, 2024, the CCRO was sent via email to the applicant, the applicant’s counsel, the respondent and the respondent’s counsel.
4On February 15, 2024, a Notice of Written Hearing (“NoWH”) was sent via email to the applicant, the applicant’s counsel, the respondent and the respondent’s counsel, giving notice of the date of the written hearing scheduled for September 27, 2024. The CCRO indicates that the applicant must serve and file her written hearing submissions no later than 30 calendar days before the scheduled hearing, or by August 28, 2024, and the respondent must serve and file its written hearing submissions no later than 14 calendar days before the written hearing, or by September 13, 2024.
5Neither party filed submissions and evidence in accordance with the dates established by the CCRO and NoWH. There is no indication in the Tribunal’s case management records that the applicant replied to the Tribunal’s attempts to contact her.
6Further, there is no indication that the applicant’s contact information was incorrect in the Tribunal’s records. She has been represented by counsel and as set out above notice of the hearing was sent to her counsel on February 15, 2024. Further, if the applicant’s contact information changed during the course of the application, she had an obligation under Rule 4.4 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) to provide the correct contact information to the Tribunal in writing.
7Given the above, I am satisfied that both parties received notice for this hearing on February 15, 2024 as required by ss. 6 (1), 6 (2) and 6 (5) of the Statutory Powers Procedures Act, RSO 1990, c.S.22 (“SPPA”). Therefore, I find that the Tribunal has met its notice obligations, and the written hearing will proceed.
ISSUES
8The 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 $2,460.00 for psychological services, proposed by HD Medical Network in a treatment plan/OCF-18 (“plan”) dated September 9, 2021?
iii. Is the applicant entitled to $2,516.50 for a chronic pain assessment, proposed by HD Medical Network in an OCF-3 dated August 23, 2021?
iv. Is the applicant entitled to the repayment of $142.00 relating to travel expenses incurred in relation to the attendance of an MRI dated November 4, 2021?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the applicant liable to pay costs of $500.00 in costs to the respondent?
RESULT
9The applicant has not met her evidentiary burden to establish her entitlement to the benefits in dispute. Given there are no benefits payable, the applicant is also not entitled to interest or an award.
10The applicant is not liable to pay costs in the amount of $500.00 to the respondent.
PROCEDURAL ISSUES
The respondent’s request to dismiss the application as abandoned is denied
11I find that the respondent’s request to dismiss the application as abandoned is denied.
12In its submissions, the respondent submits that the applicant’s non-compliance with the CCRO dated February 13, 2024, in that she did not serve and file her written submissions is an abuse of process. The respondent further submits that the matter should be dismissed without a hearing since the applicant has abandoned the proceedings.
13The applicant did not file a motion to request an extension of time to submit her written submissions.
14As set out above, I find that the parties have had notice of the hearing and pursuant to s. 6(4) of the SPPA, I have decided that the hearing will proceed. Although the applicant has not participated in the Tribunal process, there has been no explanation to disclose the applicant’s intentions. I find that the respondent has not demonstrated any prejudice by the hearing proceeding on its merits.
The respondent’s request for costs is added as an issue in dispute
15In its written hearing submissions, the respondent added a request for costs.
16Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (“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.
17I have added the respondent’s claim for costs to the list of issues in dispute because the respondent has raised the issues of costs of $500.00 against the applicant in its hearing submissions, and a party may raise the issue of costs at any stage of a hearing before the decision is released.
ANALYSIS
18I find that the applicant has not met her onus to prove entitlement to accident benefits.
19The applicant did not file any submissions or evidence with regard to this application.
20I find that the applicant has not met her evidentiary burden on a balance of probabilities. Therefore, she is not entitled to the benefits claimed on her application.
Is the respondent entitled to costs?
21The respondent’s request for costs is denied.
22Under Rule 19, the Tribunal may grant costs if it finds that a party acted unreasonable, frivolously, vexatiously or in bad faith. In deciding whether to award costs, several factors are to be considered by the Tribunal: the seriousness of the conduct, whether the conduct was in breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, prejudice to the other party, and the potential impact a costs order would have on individuals accessing the Tribunal system. Under Rule 19.5, the Tribunal may award a different cost amount than requested.
23In seeking costs of $500.00 from the applicant, the respondent argues that the applicant abandoned the hearing by not making any submissions, which is an abuse of process, and the matter should be dismissed without a hearing.
24I find that the fact that the applicant did not file submissions in and of itself, is not necessarily unreasonable, frivolous, vexatious, or in bad faith. The absence of the applicant’s submissions and evidence did not interfere with the Tribunal’s ability to carry out a fair, efficient and effective process. The respondent makes no submissions to address whether it has suffered any prejudice as a result of the fact that the applicant did not file submissions. Further, the potential impact an order for costs would have on the applicant significantly outweighs any prejudice to the respondent.
25For all these reasons, I find that the applicant is not liable to pay costs of $500.00 to the respondent.
ORDER
26For the reasons set out above, I find that:
i. As the applicant has not met her evidentiary burden, her application for benefits is denied and her application is dismissed.
ii. As the respondent has not met the test for a cost order, the applicant is not liable to pay costs to the respondent.
Released: May 6, 2025
Lisa Holland
Adjudicator