Licence Appeal Tribunal File Number: 23-002620/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:
Shamiran Yako
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
APPEARANCES:
For the Applicant: No submissions
For the Respondent: Branson Wong, Counsel
HEARD: By way of Written Submissions
OVERVIEW
1Shamiran Yako, the applicant, was involved in an automobile accident on October 13, 2020, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In a case conference report and order released on October 23, 2023, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for June 7, 2024, with the Notice of Written Hearing e-mailed to the parties on October 26, 2023.
3The applicant’s initial submissions were due on May 8, 2024. The applicant has not provided any written submissions to the Tribunal. There has also been no Notice of Motion filed seeking to extend the applicant’s initial submissions deadline, nor has there been an adjournment request made seeking to reschedule the written hearing.
4The respondent filed submissions with the Tribunal stating it has not received submissions from the applicant. It is seeking a dismissal of the application, along with costs in the amount of $1,000.00.
ISSUES
5As listed in the case conference report and order, the following preliminary issue is in dispute:
i. Is the applicant precluded from applying for the treatment plans noted below at item nos. 4-5 for physiotherapy pursuant to s. 55(1)2 of the Schedule for failing to attend at an MRI on April 25, 2022?
6As listed in the case conference report and order, the following substantive issues are in dispute:
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 $2,900.00 for a psychological assessment, proposed by Dr. Jeremy Frank and Associates in a treatment plan/OCF-18 (“plan”) submitted on September 13, 2021 and denied on September 24, 2021?
iii. Is the applicant entitled to $4,653.91 for psychological treatment, proposed by Dr. Jeremy Frank and Associates in a plan submitted on October 30, 2021 and denied on November 11, 2021?
iv. Is the applicant entitled to $199.50 for physiotherapy, proposed by Activa Hamilton in a plan submitted on March 26, 2021 and denied on April 6, 2021?
v. Is the applicant entitled to $1,070.56 for physiotherapy, proposed by Activa Hamilton in a plan submitted on September 13, 2021 and denied on September 16, 2021?
vi. Is the applicant entitled to $1,198.01 for physiotherapy, proposed by Activa Hamilton in a plan submitted on July 12, 2021 and denied on September 16, 2021?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
7Section 7(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 states that, if notice of a written hearing has been given to a party who does not then participate in the hearing in accordance with the notice, the Tribunal may proceed with the hearing in the absence of that party’s participation.
8The applicant’s representative filed a Removal of Representative form prior to the initial submission deadline (submitted February 26, 2024). Rule 24.4 of the Licence Appeal Tribunal Rules, 2023 states that a representative seeking to remove themselves as a party’s representative more than 30 days before the next scheduled adjudicative event must submit a completed Removal of Representative form. According to Rule 24.4, the withdrawing representative must confirm that:
a. the party they were representing has been advised of their withdrawal as representative; and
b. the representative has complied with the Law Society Act and applicable guidelines and codes of conduct when withdrawing as the party's representative.
9This withdrawal was communicated to the applicant through an e-mail from the Tribunal (dated March 5, 2024). The Tribunal also mailed the applicant a copy of the Notice of Written Hearing and the case conference report and order.
10Taken together, I am satisfied that both parties received notice of the written hearing, so I shall proceed without submissions from the applicant.
11The applicant has the onus of demonstrating removal from the MIG, as well as entitlement to the medical benefits, award, and interest in dispute. By not filing any submissions or evidence with the Tribunal, I find that the applicant has not met this burden.
12I further find that the applicant did not file a Notice of Motion requesting an extension of the initial submission deadline, nor has there been an adjournment request made seeking to reschedule the written hearing.
13Due to my findings above, I conclude that the preliminary issue is moot.
COSTS REQUEST
14I do not find the respondent has met the threshold needed to order costs.
15Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. Rule 19.5 lists factors the Tribunal shall consider when determining whether to order costs (and, if so, how much).
16Highlighting her lack of written submissions, the respondent supports its request by submitting that the applicant “acted unreasonably, frivolously, and/or in bad faith” by not alerting the Tribunal of her intention not to proceed with the written hearing. According to the respondent, this behaviour required it to incur expenses to prepare its submissions. The respondent also cites case law from the Tribunal to support its costs request.
17I find the respondent has not established that the applicant’s behaviour merits costs. Though I recognize that the applicant has breached the submissions deadline from the case conference report and order (a breach that has prejudiced the respondent and impacted the Tribunal’s ability to carry out an efficient and effective process), I conclude that her breach is remedied through this decision. Additionally, considering the discretionary nature of costs orders, I find the respondent’s case law is of limited assistance in deciding this request. As such, I do not find a costs order is merited in this case.
ORDER
18As the applicant has made no submissions and tendered no evidence in support of the claims before the Tribunal, the applicant has not demonstrated removal from the MIG, nor has the applicant demonstrated entitlement to the medical benefits, award, and interest in dispute.
19The preliminary issue is moot.
20The respondent’s costs request is denied.
21The application is dismissed.
Released: January 28, 2025
Craig Mazerolle
Vice-Chair