Toor v. Zenith Insurance Company, 2025 CanLII 42707

Toor v. Zenith Insurance Company, 2025 CanLII 42707

Citation: Toor v. Zenith Insurance Company, 2025 ONLAT 24-003576/AABS

Licence Appeal Tribunal File Number: 24-003576/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:

Satvir Toor

Applicant

and

Zenith Insurance Company

Respondent

DECISION

PANEL:

Neil Levine

Nathan Prince

APPEARANCES:

For the Applicant:

Ivy So, Paralegal

For the Respondent:

Farid Mahdi, Counsel

Heard by Videoconference:

March 4, 2025

OVERVIEW

1Satvir Singh Toor, the applicant, was involved in an automobile accident on November 12, 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, Zenith 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. 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 a non-earner benefit ("NEB") of $185.00 per week from December 6, 2021, to November 12, 2023?

iii. Is the applicant entitled to $2,023.03 for physical therapy, proposed by Mackenzie Medical Rehabilitation Centre, in a treatment plan/OCF-18 ("plan") submitted on August 19, 2022?

iv. Is the applicant entitled to $1,525.84 for physical therapy, proposed by Mackenzie Medical Rehabilitation Centre, in a plan submitted on October 12, 2022?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant remains in the MIG.

4The applicant is not entitled to a NEB.

5The applicant is not entitled to the plans in dispute.

6The applicant is not entitled to interest.

PROCEDURAL ISSUES

Applicant Not Present

7The applicant was not present at the hearing. The Tribunal attempted to contact him by telephone and email and waited 30 minutes for his appearance. He did not attend.

Motion to Adjourn

8The applicant's representative requested that the hearing be adjourned, given the absence of her client and her inability to communicate with him since the case conference. In the month leading up to the hearing, the applicant's representative made numerous attempts to obtain instructions from her client via telephone, email, and text message, all of which went unanswered.

9The respondent objected to the motion to adjourn the hearing on the basis that an adjournment request had already been made during a pre-hearing motion which was denied. The respondent further submitted that the applicant was aware of the hearing, and that it would be prejudicial to the respondent because it had spent time and resources preparing for the hearing and was ready to proceed.

10We denied the request by the applicant's representative for an adjournment. Rule 16.4 of the Licence Appeal Tribunal Rules, 2023 ("Rules") provides that following the denial of an adjournment request, the Tribunal will not consider any further adjournment requests for the same event that are made for essentially the same reasons as the initial request. We found that the applicant's representative had already brought a pre-hearing motion on February 20, 2025 to adjourn the hearing on the basis that the applicant's representative was unable to communicate with her client and this motion was denied. The basis for the oral adjournment request during the hearing was for the same reasons as the initial request in the pre-hearing motion. As such, we denied the applicant's motion to adjourn the hearing.

Motion to Dismiss the Application as Abandoned

11Respondent's counsel requested that the application be dismissed as abandoned pursuant to Rule 3.4(d) and section 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22) ("SPPA").

12The respondent submitted that the claim had been dormant for most of its lifespan. In addition, the applicant had not complied with any of the production requirements of the case conference report and order and he had been unresponsive to his representative's numerous communications.

13The applicant did not make any submissions with respect to the motion to dismiss the application as abandoned.

14While we are alive to the lack of productions and the inability of the applicant's representative to communicate with her client, we find that there is insufficient evidence before us to draw the inference that the applicant has abandoned the application.

15We find that the applicant had sufficient notice that this hearing was proceeding based on his attendance at the case conference and the Notice of Videoconference Hearing that was sent to him on August 9, 2024. Furthermore, the Notice of Videoconference Hearing advised the applicant that if he did not attend the hearing, that the Tribunal may make a decision in his absence without any further notice. As such, we denied the respondent's motion to dismiss the applicant as abandoned and ordered that the hearing proceed.

16In deciding to proceed with the hearing, we relied on Section 7(3) of the SPPA, which addresses non-attendance at an electronic hearing. This provision authorizes a tribunal to proceed with a virtual hearing without the participation of the party where notice has been given.

ANALYSIS

The applicant is not entitled to the benefits in dispute

17We find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the benefits in dispute.

18The applicant bears the onus of demonstrating that he is entitled to the benefits in dispute. The applicant did not make any submissions with respect to any of the issues. Accordingly, the applicant has not met his onus and is therefore not entitled to any of the benefits in dispute.

Interest

19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits payable, the applicant is not entitled to interest.

ORDER

20We make the following order:

i. The applicant remains in the MIG;

ii. The applicant is not entitled to NEBs;

iii. The applicant is not entitled to the plans in dispute;

iv. The applicant is not entitled to interest; and

v. The application is dismissed.