Tribunal File Number: 16-000881/AABS
Case Name: 16-000881 v The Co-operators General Insurance Company
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:
L. Y. C.
Applicant
And
The Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Heather Trojek, Vice Chair
APPEARANCES:
For the Applicant: Not Present
For the Respondent: Tina Huynh
Counsel for the Respondent: Bruce Keay
HEARD IN PERSON: Licence Appeal Tribunal: January 23, 2017
INTRODUCTION
- An in-person hearing was held on January 23, 2017. The applicant did not attend. I dismissed the applicant’s claims for entitlement to non-earner benefits; chiropractic services in the amount of $2,017.12, recommended by Dr. Feng on December 24, 2014; and $500.00 for eyeglasses damaged in the accident. These are the reasons for my decision.
BACKGROUND
The applicant and the respondent attended a case conference on October 6, 2016. The case conference adjudicator ordered two in-person hearings, one to determine if the applicant had the right to proceed to a hearing on certain benefits and a second to deal with the applicant’s actual entitlement to benefits. The first hearing took place on October 25, 2016. The second hearing was scheduled to commence on January 23, 2017.
Both parties attended and participated in the first hearing.
A decision in respect of the first hearing was issued on November 18, 2016. The only issues that remained to be determined in the second hearing were as follows:
a) Is the applicant entitled to receive non-earner benefits in the amount of $185.00 per week ongoing from June 26, 2015?
b) Is the applicant entitled to receive a medical benefit in the amount of $2,017.12 for chiropractic services recommended by Dr. Feng in a treatment plan dated December 24, 2014?
c) Is the applicant entitled to $500.00 for eyeglasses damaged in the accident?
NOTICE TO THE APPLICANT
On November 18, 2016, the Tribunal sent the applicant a copy of the Decision, case conference report and order by regular mail. In the covering letter the applicant was reminded of the date of the second hearing scheduled for January 23, 2016 and of the exchange of documents ordered by the case conference adjudicator. The letter was sent to the address provided in the applicant’s Application to the Tribunal; the letter was not returned to the Tribunal as undeliverable.
The November 18, 2016 letter was also sent to the applicant via email to the address provided to the Tribunal. The email was not returned as undeliverable.
On December 14, 2017, the Tribunal sent a written Notice of Hearing (“Notice”) to the parties, confirming the date, time and location of the second hearing.
The Notice was sent to the applicant by regular mail at his last known address. The Notice confirmed that the hearing was scheduled to commence at 9:00 a.m. on January 23, 2016. It also warned that “If you do not attend the hearing, the Tribunal may make a decision in your absence and without further notice to you.”
At no time did the applicant inform the Tribunal that his mailing address, email address or telephone number had changed.
The applicant did not submit any evidence to the Tribunal prior to the date of the hearing.
HEARING
On January 23, 2016, respondent’s counsel and a representative for the respondent were present at the time the in-person hearing was scheduled to commence.
When the applicant did not appear at the scheduled time, I held the matter down for half an hour. When the applicant did not appear, I commenced the hearing at 9:30 a.m.
ANALYSIS AND DECISION
Rule 6.1 and 6.2 of the Tribunal’s Rules of Practice and Procedure state, that the Tribunal may serve a document on a party by regular mail and the document is deemed to have been received on the fifth day after the post mark date, not including holidays. The Rules also allow for a document to be served via email.
A party is required under Rule 4.4 to notify the Tribunal promptly of any change in their contact information.
I am satisfied that by sending the Notice of Hearing to the applicant’s last known address that the Tribunal complied with its Rules and that the applicant did in fact receive the Notice from the Tribunal.
The applicant previously attended a case conference and a hearing. The Tribunal sent the Notice of the second hearing to the same address and using the method of delivery used to notify the applicant of the two proceedings that he previously attended.
I find that the Tribunal made more than reasonable efforts to ensure that the applicant was aware of the hearing and of his right to submit evidence to the Tribunal.
Since the Notice, email and the letter of November 18, 2018 were not returned to the Tribunal as non-deliverable, I conclude that the applicant, either received the Notice and chose not to participate in the hearing, or moved and failed to inform the Tribunal that he had done so.
I am further satisfied that the applicant was advised that if he did not attend the hearing that a decision could be rendered in his absence.
The applicant bears the burden of proof of establishing his entitlement to the benefits in dispute at this hearing. As the applicant did not participate or present any evidence at the hearing, I am unable, on a balance of probabilities, to find that he is entitled to the recovery he seeks.
CONCLUSION
- Accordingly, the applicant’s claims for the benefits sought at this hearing are dismissed.
Released: February 13, 2017
Heather Trojek, Vice Chair