Released Date: November 6, 2019
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:
O.M.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Jeffrey Shapiro, Vice Chair
APPEARANCES:
For the Applicant:
Did Not Appear
For the Respondent:
Andrew Smith, Counsel
Court Reporter:
Bruce Porter
HEARD: In-Person:
November 4, 2019
OVERVIEW
1The applicant was involved in an automobile accident on June 26, 2015. He sought, and was denied, an Income Replacement Benefit (“IRB”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). He then submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2There was a priority dispute among insurers which resulted in Aviva taking over the defence of this matter. Aviva maintains that the applicant is not entitled to the IRB.
3This matter was scheduled for a four-day hearing starting at 9:30 A.M. on November 4, 2019, to determine if the applicant was entitled to the IRB. However, as the hearing was commenced, but the applicant did not appear, I find in favour of Aviva. This matter is dismissed.
ISSUES
4The issues in dispute, as listed in this Tribunal’s July 4, 2018 case conference order, and as confirmed by counsel for Aviva, are:
a. Is the applicant entitled to an income replacement benefit [“IRB”] in the amount of $400 per week from July 3, 2015 to date and ongoing? The quantum of the IRB may be in dispute. The applicant is claiming entitlement to a pre and post 104 IRB.
b. Is the applicant entitled to interest on any overdue payment of benefits?
5At the hearing, Aviva asserted a claim for its costs against the applicant.
6I note that Aviva confirmed that it had withdrawn a prior preliminary issue concerning whether the applicant was entitled to apply for the IRB.
RESULT
7The applicant is not entitled to the IRB, and thus, no interest is owed. Aviva is not entitled to its claim for costs.
Analysis – IS THE APPLICANT ENTITLED TO AN IRB?
8S. 5 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if the insured person suffers “a substantial inability to perform the essential tasks” of his pre-accident employment.
9It is well accepted that the applicant bears the onus to prove his entitlement to a benefit. In other words, the applicant has the obligation to prove his entitlement to the IRB, rather then Aviva having to prove he’s not entitled to it.
10In this case, as the applicant was not present at the hearing and did not call any evidence, he has not established his entitlement to the IRB.
11I note that although the applicant did not appear, I am satisfied that he had ample notice of the hearing and chose not to appear. For instance:
i This Tribunal’s June 3, 2019 order states “[1] The applicant was advised he has 30 days to retain new counsel.”, and “[3] A hearing was scheduled for November 4, 5, 7 and 8, 2019 beginning at 9:30 AM in Toronto regardless of whether the applicant has counsel or not.” (Bold in original; underline added).
ii The Tribunal’s July 4, 2019 order also confirmed the hearing date and time.
iii Aviva forwarded a copy of its document book (i.e. the documents it intended to rely on at the hearing) to the applicant at his last known address by courier on October 18, 2019. His son signed for the documents on that date.1
iv The applicant did not file any documents with the Tribunal prior to the hearing, to be used at the hearing.
v The Tribunal forwarded a formal Notice of Hearing on October 22, 2019 to the applicant at his last known address. On October 29, 2019, the Tribunal sent, by courier, a letter as a “reminder” of the hearing.
vi After the scheduled start of the hearing, at my request, the Tribunal staff attempted to reach the applicant by telephone and email without success. As of 11:17 A.M., the applicant failed to appear.
Costs - Is Aviva ENtitled to Its Costs of the hearing?
12Aviva seeks its costs of the hearing on the grounds that the applicant pursued this matter for several years, made no effort to resolve this matter, and then did not give any notice of his not appearing causing the Aviva to expend several days of time in hearing preparation. Aviva suggests that an award of $500 is appropriate under the Tribunal’s Rules. It further submits a policy argument that a message should be sent to discourage this type of behaviour.
13Hearing Costs in this matter are governed by Rule 19 of the LAT Rules of Practice and Procedure, Version 1 (April 1, 2016) which only allow costs upon a showing of actions taken “unreasonably, frivolously, vexatiously, or in bad faith” during the proceeding.
14As a preliminary matter in considering Aviva’s request, I note that while often requests for costs are made with such little basis that they might themselves be “frivolous” claims, I found that Aviva’s grounds for the request, the amount sought, and the presentation of the request to be reasonable.
15That said, I deny the request for the following reasons. As an overall point, while the applicant’s actions during this matter, though at times “frustrating”, do not appear to meet the definition of the Rule.
16Regarding the fact that the applicant did not advise Aviva of his intention not to appear causing Aviva to prepare for a hearing, perhaps unnecessarily – which strikes me as the strongest basis for costs – I find it important that the applicant is unrepresented. A review of the case conference orders and cursory review of the docket both indicate the applicant has had several different lawyers in this matter, and most importantly, appears to have been trying to secure new counsel. It is difficult to conclude that the applicant intended any unreasonable or bad-faith behaviour, and it appears equally or more likely that as hearing approached, without counsel, he realized he was unlikely to succeed. If counsel was involved, the result on costs might be different. While the circumstances are frustrating, I do not conclude that the Rule’s high standard have been met.
CONCLUSION and Order
17I find the applicant is not entitled to the IRB, and thus, no interest is owed. I find Aviva is not entitled to its claim for costs. The application is dismissed.
Released: November 6, 2019
Jeffrey Shapiro
Vice Chair