Pilapil v. Wawanesa Mutual Insurance Company, 2025 CanLII 62738

Citation: Pilapil v. Wawanesa Mutual Insurance Company, 2025 ONLAT 24-006122/AABS

Licence Appeal Tribunal File Number: 24-006122/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:

Eduardo Pilapil

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Applicant: Eduardo Pilapil, Self-Represented Applicant (did not attend)

For the Respondent: Eric Boate, Counsel

Heard by Videoconference: June 16, 2025

OVERVIEW

1Eduardo Pilapil (the “applicant”) was involved in an automobile accident on September 27, 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 Wawanesa Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
2. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 26, 2021, to present and ongoing?
3. Is the applicant entitled to the assessments and treatments proposed by Way to Health Clinic Inc., as follows: (a) Physiotherapy services in the amount of $1,834.52, in a treatment plan submitted April 4, 2022; (b) Physiotherapy services in the amount of $1,728.12, in a treatment plan submitted June 20, 2022; (c) Physiotherapy services in the amount of $1,650.78, in a treatment plan submitted August 29, 2022; and (d) A psychological assessment n the amount of $2,200.00, in a treatment plan dated July 26, 2022?
4. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to any of the disputed benefits, interest, or an award. The application is dismissed.

PROCEDURAL ISSUE

The hearing proceeds without the applicant in attendance

4I ordered that the hearing proceed in absence of the applicant.

5Rule 3.7.1 of the Licence Appeal Tribunal Rules (“Rules”) specifies, that if a party who has been given notice of a hearing in accordance with the Statutory Power Procedures Act (“SPPA”), does not attend their in-person or electronic hearing within 30 minutes of the scheduled start time as stated in the hearing notice, the Tribunal may: (1) proceed with the hearing in the absence of that party; and/or (2) make any order it considers appropriate in the circumstances.

6The respondent submitted that the applicant had abandoned the proceeding, and that the Tribunal should therefore dismiss his appeal without a hearing per Rule 3.4. The respondent explained that the applicant had not met the disclosure obligations set out in the case conference report and order (“CCRO”) for this matter, and specified that the applicant had not filed or served a document brief or final witness list 21 days before the hearing as required by Rule 9.4.3. The respondent added that the applicant did not attend an earlier scheduled hearing for this matter, and that it was unaware of any communications from the applicant since November 2024.

7I find the applicant has not provided any reasons for his non-attendance and that the hearing should proceed per Rule 3.7.1.

8Following the case conference for this matter on September 26, 2024, a three-day hearing was scheduled to start on March 31, 2025. The applicant’s representative subsequently withdrew from the file in November 2024 in accordance with Rule 24.4. There is no evidence before the Tribunal to establish that any attempt has since been made by the applicant to contact the Tribunal, and I am persuaded that the removal of his representative marks the last communication from the applicant about his appeal.

9In a motion notice dated March 11, 2025, the respondent sought to have the matter dismissed on the basis that the applicant had abandoned his appeal. The respondent’s motion also requested an order for $2,000.00 in costs. The Tribunal considered the motion at the hearing on March 31, 2025—which the applicant did not attend—and ordered the matter be adjourned for 30 days to ensure the applicant received notice of the hearing. The respondent’s cost request was deferred to the re-scheduled hearing.

10The adjournment order was sent to the parties on April 3, 2025, and the Tribunal ordered and provided notice of a second adjournment on its own undertaking on May 20, 2025. The subsequent Notice of Hearing (“NOH”)—which indicated the three-day proceeding would commence at 9:30 AM on June 16, 2025—was sent to the parties on May 30, 2025. I am satisfied the applicant received proper notice of this hearing. The applicant’s mailing address on the NOH is the same as that listed in the application, and I have no evidence before me to indicate that the applicant would not have received his mail at this address. Further, the extent to which a language barrier may have frustrated the applicant’s ability to understand the NOH and communicate with the Tribunal about his application is unclear to me. While a Tagalog interpreter was ordered at the case conference, I find the application filed in May 2024 indicates an interpreter is not required as an accommodation. As such, I did not place full weight on potential language difficulties contributing to the applicant’s non-attendance.

11Considering the age of this file—which was more than a year old at the time of the hearing—and given the applicant did not appear within 30 minutes of the scheduled start time for the hearing, had been afforded ample notice of the proceeding, and did not provide reasons for his non-attendance, I exercised the discretion offered at Rule 3.7.1 and ordered the hearing to proceed in his absence.

ANALYSIS

The applicant has not demonstrated entitlement to any of the disputed benefits

12I find the applicant is not entitled to any of the disputed benefits.

13For the MIG, section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

14The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from his accident-related injuries if kept in the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

15Pertaining to the NEB, Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

16To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

17The applicant made no arguments and led no evidence to support his entitlement to any of the disputed benefits.

18The respondent submitted that the applicant has not met his onus to prove entitlement to the disputed benefits because he produced no evidence to support his position that the benefits are payable. The respondent added that the applicant failed to call witnesses or provide section 25 assessments to show he is disabled, or that the disputed treatment plans are reasonable and necessary. The respondent relies on the clinical notes and records of Dr. Ugo Gizzi (family physician) to show the applicant sustained injuries consistent with those defined as minor by the Schedule. The respondent also relies on the OCF-12 completed by the applicant in April 2022 to show he could complete almost all of his pre-accident activities of normal life after the accident. As well, the respondent pointed to the section 44 assessments completed by Drs. Godwin Lau (psychologist) and Alborz Oshidari (physiatrist) as medical evidence that demonstrates the applicant does not meet the legal test for an NEB, or for the psychological assessment and physiotherapy proposed in the disputed treatment plans.

19To prove entitlement to the disputed benefits, the applicant must, at minimum, present arguments and point to supporting evidence. I find the applicant has not done so here. He did not file or serve evidence. He did not attend the hearing to testify about his injuries or impairments. He offered no witnesses to corroborate his medical condition. Accordingly, I find the applicant has not met his onus and is therefore not entitled to the medical benefits he seeks in his application.

Interest

20Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no benefits payable in this matter, interest does not apply.

Award

21The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

22There are no benefits payable in this matter. Therefore, the respondent is not liable to pay an award.

Costs

23I find no costs are payable to the respondent.

24Rule 19 provides that the Tribunal may order costs where it determines a party to a dispute has acted unreasonably, frivolously, vexatiously, or in bad faith. In deciding whether to order costs and the amount of costs to be ordered, the Tribunal is required to 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 or not 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.

25The respondent requested an order for costs in the amount of $2,000.00. The respondent submitted that these costs were warranted because the applicant’s non-responsiveness required a second hearing that incurred extra costs. The respondent also attributed the extra costs of preparing motion materials to the applicant’s conduct. The respondent pointed to the applicant’s failure to produce ordered documents, hearing, and motion materials, and attend the re-scheduled hearing, as examples of misconduct that merited costs.

26I decline to order costs in this case. While I agree the applicant’s failure to file evidence, arrange witnesses, respond to the respondent’s motion, and appear at two consecutive hearings constitutes a breach of the Tribunal’s orders and hampered procedural efficiency, I am mindful that these lapses occurred only after his legal representative withdrew. Further, I find the seriousness of the applicant’s conduct weighs most heavily on himself. After all, the applicant bears the onus of proof, and the ultimate outcome of his conduct is that he was unable to establish entitlement to any of the disputed benefits, interest, or award. In my view, an order for costs arising in such circumstances would potentially discourage individuals—and especially self-represented parties—from accessing the Tribunal system.

ORDER

27The applicant is not entitled to any of the disputed benefits, interest, or an award. The respondent is not entitled to costs. The application is dismissed.