Tribunal File Number: 16-002037/AABS
Case Name: 16-002037 v Unifund Assurance 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:
H.A.
Applicant
And
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Respondent: Karen Power, Counsel
HEARD: Written Hearing: January 11, 2017
BACKGROUND:
1The applicant was injured in a motor vehicle accident on September 11, 2014 and applied for accident benefits to Unifund Assurance Company (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant applied for an income replacement benefit which was denied by the respondent. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).
ISSUES IN DISPUTE:
3The following issues are in dispute before the Tribunal:
a) Is the applicant entitled to receive a weekly income replacement benefit in the amount of $115.50 from October 28, 2015 to date and ongoing?
b) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT:
4For the reasons that follow the applicant’s claim for an income replacement benefit and interest is dismissed.
THE FACTS:
5Both parties participated in a case conference on November 10, 2016, by teleconference. The Tribunal issued an Order dated November 14, 2016 confirming that the parties agreed to a written hearing to be held on January 11, 2017. The parties also agreed to the following time table to exchange and file written submissions and evidence:
a) The applicant was to file written submissions and evidence by December 12, 2016;
b) The respondent was to file its reply submissions and evidence by January 2, 2017.
6The Tribunal did not receive any written submissions or evidence from the applicant. Nor has the applicant contacted the Tribunal to request an extension to file submissions.
7On December 30, 2017, the respondent filed its submissions in compliance with the Tribunal’s Order.
NOTICE TO THE APPLICANT:
8On November 29, 2017, the Tribunal sent the representatives for both the applicant and respondent a copy of the case conference report and order dated November 14, 2016, which outlined the date agreed upon for the written hearing as well as the deadlines for submissions and evidence. These documents were sent by both email and fax to the representatives for both the respondent and applicant.
9On December 7, 2017, the Tribunal sent out a written Notice of Hearing (“Notice”) which confirmed the written hearing was scheduled for January 11, 2017 and outlined the deadlines for submissions. The Notice was sent to the applicant by mail, the applicant’s representative by email (its chosen means of service) and was sent to the respondent and their representative by email. The Notice warned that if a party failed to participate the Tribunal may make a decision without further notice.
ANALYSIS AND DECISION:
10Rule 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 by email.
11Rule 4.4 requires a party to notify the Tribunal promptly of any change in their contact information.
12I am satisfied that by sending the case conference report and order to the applicant’s representative by email, as well as the Notice to both the applicant’s last known address and his representative by email that the Tribunal complied with its Rules and that the applicant did receive adequate Notice from the Tribunal.
13I find that the Tribunal made more than reasonable efforts to ensure that the applicant and his representative were aware of the hearing and of the right to file submissions and evidence to the Tribunal and the deadlines for doing so.
14Since none of the correspondence or emails attaching the order, case conference report or Notice came back to the Tribunal as undeliverable, I conclude that the applicant and his representative received the documentation including the Notice and chose not to participate in the hearing, or did not inform the Tribunal of an alternative address.
15I am further satisfied that the applicant and his representative were advised that if he did not attend the hearing that a decision could be rendered in his absence.
16The 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 remedy he seeks.
CONCLUSION:
17Accordingly, the applicant’s claim for an income replacement benefit and interest is dismissed.
COSTS:
18The respondent seeks costs in this proceeding pursuant to Rule 19.1 which provides that the Tribunal may award costs against a party where it has been found that they have acted unreasonably, frivolously or vexatiously, or in bad faith.
19The respondent argues that the applicant has acted unreasonably, frivolously or vexatiously and in bad faith by agreeing to the written hearing and the deadlines for submissions at the case conference and failing to adhere to them.
20This issue will be addressed by way of a written hearing in order to give the applicant an opportunity to respond to the issue of costs.
ORDER:
1The applicant’s claim for an income replacement benefit and interest is dismissed.
2A written hearing will be scheduled to address the issue of costs.
Released: April 24, 2017
Rebecca Hines, Adjudicator