Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal
Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3
In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260
1-800-255-2214
TTY: 416-916-0548
1-844-403-5906
Fax: 416-325-1060
1-844-618-2566
Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis
Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2
Tél. : 416 314-4260
1 800 255-2214
ATS : 416 916-0548
1 844 403-5906
Téléc. : 416 325-1060
1 844 618-2566
Site Web : www.slasto.gov.on.ca/fr/AABS
Date: 2017-05-26
Tribunal File Number: 17-000781/AABS
Case Name: 17-000781 v The Guarantee Company of North America
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:
Y. S.
Applicant
and
The Guarantee Company of North America
Respondent
DECISION ON A MOTION
Adjudicator: Robert Markovits
Appearances:
Applicant: Did Not Attend
Counsel for the Applicant: Katlin De Witt
Representative for the Respondent: Richard Stanton
Counsel for the Respondent: Shawn Mcdonald
Interpreter: Krishna Kumar
Held by Teleconference: April 21, 2017
OVERVIEW
The applicant, was injured in an automobile accident on September 29, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
The issues in dispute were identified and agreed to as follows:
Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period September 29, 2014 to present date and ongoing, denied by the respondent on November 6, 2014?
Is the applicant entitled to receive a medical benefit in the amount of $2,308.69 recommended by Ache Away Rehab Centre for chiropractic services in a treatment plan dated June 29, 2016, denied by the Respondent on January 3, 2017?
Is the applicant entitled to receive a medical benefit in the amount of $3,205.48, for physiotherapy treatment, recommended by Ache Away Rehab Centre in a treatment plan dated March 28, 2016 denied by the Respondent on April 25, 2016?
BACKGROUND:
An initial case conference was scheduled to take place on April 6, 2017. Although required by Rule 14.6 of the Licence Appeal Tribunal Rules of Practice and Procedure (the Rules) the applicant did not attend.
At that session, an order reconvening the case conference for Friday, April 21, 2017 at 11:00 a.m. was issued. The order also put the applicant on notice that his appeal would be “considered abandoned and dismissed without a hearing” if he failed to attend the scheduled resumption of the case conference.
The applicant did not attend the resumption of the case conference on April 21, 2017. Counsel for the applicant explained that her office had contacted the applicant the day before the scheduled case conference and reviewed the procedures for joining the teleconference. They spoke the morning of the case conference and confirmed the procedure as well
A ten minute recess was called in order to give counsel for the applicant an opportunity to locate the applicant. After the recess, counsel for the applicant informed the other attendees that she had spoken to the applicant and she expected him to join the case conference. The applicant’s counsel indicated that there was a Tamil speaking person in their office and that this person had previously explained what was expected of the applicant.
After the failed attempt to locate the applicant, counsel for the respondent made a motion that the claim be declared abandoned given:
the applicant’s failure to attend the first case conference;
the applicant was given the opportunity to attend a second case conference;
that notice of dismissal as abandoned was given in the first order should he fail to appear for the second case conference; and
despite attempts by his counsel to contact him and explain the importance of attending the second case conference, he still failed to do so.
I informed both counsel that since the applicant was an elderly gentleman who does not speak English and requires an interpreter, I would provide a further recess to locate the applicant, before hearing submissions on the motion to dismiss.
Following the second recess, the applicant did not join the teleconference and did not contact his counsel’s office. At that time I heard submissions from both counsel in respect of the motion to dismiss. The applicant’s counsel was unable to provide an explanation for the applicant’s absence and asked that consideration be given to his age and language difficulties.
The respondent submitted that the applicant had clear notice of the intention to dismiss at the first case conference. Further, the Case Conference report and Order dated April 13, 2017 stated:
The applicant is on notice that the appeal will be considered abandoned and dismissed without a hearing if he does not attend the resumption of the case conference.
CASE MANAGEMENT
NOTICE OF DISMISSAL
During the first case conference, the importance of the applicant attending the second case conference was emphasized to his counsel and of potential ramifications if he failed to attend.
The applicant did not attend two scheduled case conferences which is contrary to rule 14.6 of the Rules. After not attending the first case conference, in the interest of administrative fairness and natural justice he was given an opportunity to attend a second case conference. The applicant was put on notice that his claim would be dismissed1 if he failed to attend the second scheduled case conference.
RESULT and ORDER
Rule 3.4 sets out the grounds for dismissal without a hearing. The Tribunal may dismiss an appeal without a hearing if the party filing the appeal has abandoned the proceeding.
Rule 15.2 states that motions may be heard at a case conference provided that the Notice of Motion is filed with the Tribunal 10 days in advance, “or in accordance with any other schedule as may be interpreted by the Tribunal and serves Notice… on all parties”.2
I brought to the attention of applicant’s counsel the potential consequences of the applicant failing to appear at the second case conference as of April 6, 2107.
Consequently there was more than the minimum ten day notice given to the applicant’s counsel at the first case conference. The applicant’s counsel should have been prepared to make submissions on why the appeal should not be dismissed
The applicant failed to attend the second case conference. The case conference was delayed thirty minutes in order to give the applicant the opportunity to participate.
In accordance with Rule 3.5 I gave the parties notice of the Tribunal’s intention to dismiss if the applicant failed to attend the rescheduled case conference. I heard submissions from applicant’s counsel at the second case conference in respect of the intention to dismiss. There was no reasonable explanation provided for the applicant’s repeated absence.
On this basis, I dismiss the appeal.
Released: May 26, 2017
_______________________________________
Robert Markovits, Adjudicator