Licence Appeal Tribunal
Tribunal File Number: 18-008457/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:
P.W.
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: No submissions
For the Respondent: Krista Groen
Written Hearing: October 17, 2019
OVERVIEW
1The applicant, P.W., was injured in an automobile accident on November 6, 2013. P.W. sought various benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2P.W. claimed entitlement to an income replacement benefit (“IRB”) for two separate periods of time. Both were denied by Economical on the basis that he did not meet the test for entitlement. P.W. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
3A case conference was held but P.W. did not attend. A resumption was scheduled in order to afford P.W. the opportunity to attend and participate in settlement discussions, however, P.W. again did not attend. Accordingly, the parties were unable to settle the issues in dispute.
4Despite evidence that P.W. abandoned his application, no withdrawal was filed and the Tribunal ordered the parties to proceed to this written hearing. P.W. did not put evidence before the Tribunal or make submissions on his entitlement to an IRB.
ISSUES IN DISPUTE
5The issues outlined in the Case Conference Order dated January 14, 2019 are:
I. Is the applicant entitled to an income replacement benefit in the amount of $68.88 per week for the time period from November 13, 2013 to November 5, 2015?
II. Is the applicant entitled to an income replacement benefit in the amount of $185.00 per week for the time period from November 6, 2015 to present and ongoing?
III. Is the applicant entitled to interest on overdue payment of benefits?
RESULT
6I find P.W. has not met his onus to prove on a balance of probabilities that he is entitled to receive an IRB for either of the periods in dispute.
ANALYSIS
7Section 5(1) of the Schedule outlines the eligibility criteria for an IRB. In order to be eligible, an insured person must either be employed at the time of the accident or, if not employed, they must have either worked for at least 26 weeks during the 52 weeks before the accident or must be receiving employment insurance (“EI”) benefits. The onus is on P.W. to prove, on a balance of probabilities, that he meets the eligibility criteria in order to be entitled to receive an IRB.
8As noted above, P.W. did not provide evidence or submissions on his entitlement to an IRB despite being offered several opportunities to do so. Accordingly, Economical submits that P.W. has not met his onus and he is therefore not entitled to an IRB. I agree and find P.W. has not satisfied his onus to prove entitlement.
9The evidence that is before the Tribunal indicates the following: P.W. stopped working at his place of employment, [a Machining Manufacturer], in October 2013, approximately one month prior to the November 6, 2013 accident. Contrary to the IRB eligibility criteria under s. 5(1)1.i, P.W. was therefore not employed at the time of the accident. In addition, the available evidence also confirms that the only form of employment held by P.W. at all during the 52-week period immediately preceding the accident was at [a Machining Manufacturer].
10Furthermore, Economical submits that the evidence supports that P.W. only worked for a total period of 11 weeks during the 52 weeks before the subject accident. Contrary to the IRB eligibility criteria outlined in s. 5(1)1.ii.A., it argues P.W. was not working for at least 26 weeks out of the 52 week period immediately preceding the subject accident. I agree.
11Finally, Economical submits that there is also no evidence whatsoever that P.W. was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident. As a result, P.W. is not eligible for an IRB under s. 5(1)1.ii.A of the Schedule either because he was also not receiving EI benefits at the time of the accident. The Tribunal has no evidence before it to refute this.
12In sum, Economical submits that P.W. does not meet any of the IRB eligibility criteria required by s. 5(1) of the Schedule. I agree. Accordingly—and because P.W. has not provided evidence to prove his case—I find he is not entitled to an IRB for either of the periods in dispute. It follows that no interest is payable.
Costs
13Economical seeks its costs in this written hearing, pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure. Rule 19 states costs may be awarded where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Here, Economical argues that P.W. had no intention of proceeding with his case despite repeated opportunities to involve him by the Tribunal. Economical argues P.W. should have withdrawn his application and his failure to do so or to file submissions at this written hearing, as ordered, is both unreasonable and frivolous.
14I disagree. While I am alive to Economical’s submissions and appreciate what may have been a frustrating proceeding, I find it unreasonable and somewhat frivolous to attempt to draw blood from a stone. It is clear that P.W. is a self-represented applicant whose counsel withdrew representation after the Tribunal application was filed, resulting in a power imbalance. For whatever reason, P.W. did not, or perhaps could not, proceed with his application. Economical is commended for its professionalism on these facts, but that much is expected of a sophisticated party. I decline to order costs.
CONCLUSION
15P.W. is not entitled to an IRB for either period. The application is dismissed.
Released: October 22, 2019
___________________________
Jesse A. Boyce
Adjudicator