Citation: Bader v. Echelon Insurance, 2021 ONLAT 20-007403/AABS
Licence Appeal Tribunal File Number: 20-007403/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:
Hazim Bader
Applicant
and
Echelon Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Cezary Paluch
APPEARANCES:
For the Applicant:
No one appeared
For the Respondent:
Krista M. Groen, Counsel
Court Reporter:
Cathy Petrou
HEARD by Videoconference:
October 20, 2021
BACKGROUND
1The applicant was involved in an automobile accident on May 18, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).1 The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) on June 26, 2020.
2A Case Conference for this matter was held on February 9, 2021 by teleconference before Adjudicator Ferguson. The applicant attended with counsel and was also assisted by an interpreter. A videoconference hearing was ordered to take place on October 20, 21 and 22, 2021.
3On September 24, 2021, the Tribunal received a Notice of Motion from the applicant’s legal representative requesting that they be removed as counsel of record, because they have been unable to communicate with the applicant since the case conference, and they do not have instructions to proceed to a hearing. As a result, on September 27, 2021, via letter, the Tribunal informed the applicant’s lawyer that a motion would not be necessary, and it has been noted that counsel was no longer representing the applicant with regard to this application before the Tribunal, and that the videoconference hearing scheduled for October 20-22, 2021 remained scheduled and would proceed. A copy of this letter was mailed to the applicant.
4A copy of the video conference link was also e-mailed to the applicant on October 18, 2022.
5The applicant failed to attend the videoconference hearing on October 20, 2022.
ISSUES
6The issues in dispute are set out in the case conference Order dated March 23, 2021, and include income replacement benefits and interest.
RESULT
7Based on the applicant’s non-attendance at the hearing, I find that the applicant has abandoned the application pursuant to Rule 3.4 of the Licence Appeal Tribunal Rules of Practice and Procedure. The Application dated June 26, 2020 is therefore dismissed.
LAW
8Rule 3.4(d) of the Tribunal’s Rules permits dismissal of an application when “the party filing the appeal has abandoned the process”.
9As well, sections 7.1 and 7.2 of the Statutory Powers and Procedure Act (“SPPA”) also speak to abandonment and notice. If a party receives notice of a hearing, in person or in writing, and fails to attend, the hearing may proceed in their absence and no further notice of the proceeding provided.
ANALYSIS
10The onus is on the applicant to prove his claim and since no evidence was proffered from the applicant, as a result, his claim is dismissed. The applicant did not file any document brief that was required to be filed by October 6, 2021. The applicant did not attend the hearing on October 20, 2021 at 9:30 a.m. The Tribunal attempted to contact the applicant on October 20, 2021 at the start of the hearing, and took an extended recess until 10:15 a.m., but was unable to reach the applicant.
11Respondent’s counsel was ready to proceed and requested that the matter be dismissed as abandoned, and explained that there has been a history of non-compliance by the applicant, including a non-attendance at an examination. Counsel explained that her office emailed the applicant several times informing him of the hearing and did not received any response from the applicant.
12As well, respondent’s counsel also cited 18-003184 v Certas Direct Insurance Company, 2019 CanLII 52368 (ON LAT) as support for its position where the Tribunal dismissed a claim where the applicant did not attend on the day of the oral hearing. This case is analogous and of assistance.
13I am also satisfied the applicant had notice of the hearing as he was present at the case conference on February 9, 2021 when today’s hearing was scheduled. Also, the Tribunal sent the applicant a Notice of Hearing on August 31, 2021 and a video conference link was also e-mailed to the applicant on October 18, 2022 notifying him that the hearing was proceeding. Furthermore, on the day of the hearing the Tribunal took a recess and attempted to contact the applicant by telephone and was unable to reach him.
14For these reasons, I find that the applicant has abandoned his appeal. Accordingly, his application is dismissed.
ORDER
15The applicant’s claim is dismissed.
Released: November 2, 2021
Cezary Paluch, Adjudicator