Licence Appeal Tribunal File Number: 23-014514/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:
Shelly Lynn Hogan
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR: Rasha El Sissi
APPEARANCES:
For the Applicant: Jono Schneider, Counsel
For the Respondent: Maia Abbas, Counsel
HEARD: By way of written submissions
OVERVIEW
1Shelly Lynn Hogan, the applicant, was involved in an automobile accident on July 9, 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, Allstate Canada, 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. ls the applicant entitled to $5,289.60 for physiotherapy services, proposed by Canadian Active Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) submitted May 10, 2022, and denied June 7, 2022?
ii. Is the applicant entitled to $5,063.09 for physiotherapy services, proposed by Canadian Active Rehab Centre in a treatment plan submitted November 8, 2022, and denied March 31, 2023?
iii. Is the applicant entitled to $1,858.00 ($3,514.41 less $1,656.41 approved) for optometric services, proposed by Canadian Active Rehab Centre in a treatment plan submitted November 11, 2022, and partially denied January 17, 2023?
iv. Is the applicant entitled to $710.01 ($4,168.66 less $3,458.65 approved) for psychological services, proposed by Hydro Health Evaluations in a treatment plan submitted November 16, 2022 and partially denied November 21, 2022?
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?
RESULT
3The applicant is not entitled to the treatment plans in dispute.
4No award or interest is payable.
5No costs are awarded.
ANALYSIS
The Applicant’s Failure to File Hearing Submissions
6The applicant has not provided submissions in relation to any of the issues in dispute for this hearing. The applicant did not withdraw her application to the Tribunal.
7The parties, including the applicant personally, participated in a case conference on April 24, 2024 (“Case Conference”). The applicant filed a Case Conference Summary on April 24, 2024 and a Document Brief of the Applicant.
8The matter proceeded to a written hearing on a date to be set by the Tribunal. The Tribunal sent the case conference report and order (“CCRO”) dated May 1, 2024 to the parties by e-mail on the same day.
9The e-mail address that the Tribunal used consistently was the same as that of the applicant’s counsel, as per the claimant’s information in her application to the Tribunal.
10On May 9, 2024, the Tribunal advised the parties that it would hold the written hearing on January 10, 2025. The notice of written hearing stated, “If you do not make submissions for the hearing, the Tribunal may make a decision without your participation, and you will not be entitled to any further notice in the proceeding.” The notice also stated, “Submissions must be filed in accordance with the Tribunal's Rules, orders and directions.”
11The notice of the written hearing was sent to the applicant and the applicant’s counsel by email to counsel’s email address as per the application.
12The applicant was provided with the due dates for submissions in the CCRO. Submissions were due 30 calendar days prior to the scheduled hearing or by December 10, 2024. Reply submissions were due 7 calendar days prior to the scheduled hearing or by January 3, 2025.
13On November 8, 2024, the applicant filed a “Supplemental Document Brief”, but no submissions in, or accompanying, the Supplemental Document Brief.
14On January 3, 2025, the applicant was notified by the Tribunal by email to her counsel that written hearing submissions and reply submissions had not been received. There was no response or request for an extension.
15The respondent made submissions for this hearing, requesting dismissal of the dispute and costs.
16In accordance with s. 7(2) of the Statutory Powers Procedure Act, I am satisfied that the applicant had notice of the hearing and as a result, the hearing proceeded in the absence of submissions of the applicant.
17To receive payment for a treatment and assessment plan under s. 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.
The applicant is not entitled to the treatment plans in dispute.
18I find that the applicant is not entitled to the treatment plans in dispute. She has not met her onus to demonstrate that they are reasonable and necessary because she failed to make submissions on entitlement.
19The applicant filed a Supplemental Document Brief for this hearing in advance of the due date for submissions. This brief consisted of an index and copies of the indexed documents. The documents are: OHIP summary, clinical notes and records, medical and rehabilitation reports, treatment, prescription summaries and Ontario Disability Support. However, the brief did not contain any submissions on the treatment plans in dispute or point to the key evidence in support of the applicant’s entitlement to the treatment plans. I note that paragraph 15 of the CCRO requires written submissions for this hearing and paragraph 20 of the CCRO requires that submissions must make specific reference to the evidence.
20The applicant has not established her entitlement to the treatment plans by filing the Supplemental Document Brief with the Tribunal. In a hearing in written format, the adjudicator does not have the opportunity to hear the applicant’s arguments and ask the applicant to point to the relevant evidence. Therefore, written submissions identifying the supporting evidence are necessary both for the Tribunal, and for the respondent to fully argue its case.
21Submissions were clearly expected by the terms of the CCRO and the notice of written hearing. The applicant was reminded by the Tribunal in an email dated January 3, 2025 that her written hearing submissions and reply submissions had not been received.
22I find that the applicant has not met her onus to demonstrate that she is entitled to the treatment plans in dispute and therefore I find that the treatment plans are not reasonable and necessary.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest does not apply as no benefits are overdue.
Award
24The applicant sought an award under s. 10 of Reg. 664. Under s. 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. As the applicant did not provide any submissions on why an award should be ordered, I find there is no basis for an award.
Costs
25The respondent sought an award of $2,500.00 in costs on the basis that the applicant’s failure to make submissions or submit evidence in support of the merits of the applicant’s claim was unreasonable.
26Under the Tribunal’s Rule 19, where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.
27In deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall 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.
28I find that the applicant’s failure to file written submissions for the hearing does not amount to serious misconduct. The applicant attended the Case Conference and submitted a Supplemental Document Brief for the hearing on time. Although there is no explanation one way or another of why she did not make written hearing submissions, I do not find that this behaviour meets the high threshold for costs. A party by not providing submissions does not interfere with the Tribunal’s ability to carry out a fair and effective process.
29As I have found that the applicant is not entitled to any of the issues in dispute, there is no prejudice to the respondent because the applicant’s claim is now closed.
30Accordingly, no costs are awarded.
ORDER
31For the above reasons, I find that:
i. The applicant is not entitled to the treatment plans in dispute.
ii. No award or interest is payable.
iii. No costs are awarded.
Released: August 29, 2025
Rasha El Sissi
Adjudicator