Mariyanayagam v. Zenith Insurance Company, 2025 CanLII 47349

Citation: Mariyanayagam v Zenith Insurance Company, 2025 ONLAT 24-006783/AABS

Licence Appeal Tribunal File Number: 24-006783/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:

Sherington Mariyanayagam

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Sherington Mariyanayagam, Applicant (Did Not Attend) Tal Eshel, Counsel (Did Not Attend)

For the Respondent: Nicole A Dowling, Counsel

Court Reporter: Rayssa Cavalcanti

Heard by Videoconference: April 28, 2025

OVERVIEW

1Sherington Mariyanayagam (the “applicant”) was involved in an automobile accident on November 16, 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 Zenith Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2This matter was scheduled for a 4-day videoconference hearing. The applicant and their counsel did not attend the hearing and a reason was not provided for their absence, despite the Tribunal’s attempts to contact the applicant by e-mail and by telephone. After waiting approximately one hour the applicant nor their counsel attended the hearing.

3The respondent submits that the applicant and their counsel have not been responsive throughout the entirety of the adjustment of this file, as neither the applicant or counsel attended the first Case Conference that was held on September 26, 2024, and only the applicant’s counsel attended the second Case Conference which was held on November 8, 2024. In addition, the respondent argues that the applicant has not been responsive to its e-mails since March 23, 2024, and that the applicant did not file a document brief or a witness list with the respondent or the Tribunal.

4In my view, it is appropriate for today’s hearing to proceed in the absence of the applicant pursuant to section 7(3) of the Statutory Powers Procedures Act. I am satisfied the applicant and its counsel received notice of today’s videoconference hearing on December 2, 2024, by the Tribunal. The Tribunal confirmed the applicant’s contact information prior to the dissemination of the notice. After waiting approximately one hour, the applicant did not attend despite phone calls and e-mails sent to both the applicant and its counsel. Therefore, in accordance with the Tribunal’s Rule 3.1 I find that proceeding with the hearing is an efficient and proportional resolution of this dispute.

ISSUES

5The issues in dispute are:

i. Preliminary Issue: The preliminary issue to be decided is:

a. Is the applicant barred from proceeding to a hearing for all the benefits claimed in this application because the applicant failed to dispute their denial within the 2-year limitation period.

ii. Substantive Issues: The issues to be decided in the hearing are:

a. Are the applicant’s injuries predominately minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.

b. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 16, 2019, to November 16, 2021?

c. Is the applicant entitled to assessments proposed by Scarborough Rehabilitation Clinic Inc, as follows:

d. $2,200.00 for a psychological assessment, in a treatment plan dated July 16, 2020:and

e. $2,350.00 for a chronic pain assessment, in a treatment plan dated June 11, 2020?

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

RESULT

6The applicant did not provide any evidence to the Tribunal in support of their claim. As a result, the applicant has not satisfied its burden to demonstrate entitlement to the benefits in dispute.

7Since no benefits are owing interest is not owing.

8The applicant shall pay the respondent $750.00 in costs.

9The application is dismissed.

ANALYSIS

The applicant’s application is dismissed.

10The applicant failed to attend the hearing and failed to present evidence or make submissions. As it is the applicant’s burden to demonstrate entitlement to the benefits in dispute, and where the Tribunal was not presented with evidence from the applicant in support of its application, it follows that the applicant cannot be successful with his claim. I find that the applicant is not entitled to any of the benefits in dispute. It also follows that no interest is payable.

11As I have found the applicant has not proven entitlement to benefits, it follows that I do not need to decide the preliminary issue raised by the respondent.

Costs

The respondent seeks costs from the applicant.

12I find that the applicant is liable to pay $750.00 in costs to the respondent.

13LAT Rule 19.5 states that in considering whether to award costs, I must consider all relevant factors including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.

14The respondent submits that the applicant’s complete inaction on this file is a serious breach of LAT Rule 19.5 and therefore is seeking $750.00 payable from the applicant. The respondent submits that the applicant has not acted in good faith on this file because it failed to attend two case conferences and the 4-day hearing assigned to this matter. Further the applicant did not comply with the disclosure documents requested by the applicant at the case conference.

15The respondent further argues that this case is from an accident approximately five years ago and that it is prejudiced by the applicant’s nonattendance, lack of disclosure and the rights and responsibilities that go along with an application for all parties to proceed.

16I agree with the respondent because the applicant in this case has shown little regard for the Tribunal’s Orders, regarding attendance of hearings, noncompliance of production orders, and by not submitting a document brief, a witness list, or replying to multiple e-mails sent by the Tribunal for an updated status on the upcoming hearing. The applicant’s conduct through out the handling of this application does prejudice the respondent because the respondent has an obligation to adjust the file on an ongoing basis and to participate in the Tribunal’s processes for resolution of this matter that has been brought forth by the applicant.

17The applicant has shown a repeated pattern of behavior that is indicative of abandonment, rather than filing a notice of withdrawal with the Tribunal which in my view would have been the most efficient and proportional avenue for all parties.

18I find that the applicant is liable to pay $750.00 in costs to the respondent.

ORDER

19It is ordered that:

i. The applicant is not entitled to any of the benefits in dispute, as the applicant failed to attend the hearing or present a case to support its application.

ii. No interest is payable.

iii. The applicant shall pay $750.00 to the respondent for costs.

iv. The application is dismissed.