Tarchichi v. Jevco Insurance, 2022 CanLII 106425

Citation: Tarchichi v. Jevco Insurance, 2022 ONLAT 19-007826/AABS and 19-009548/AABS

Licence Appeal Tribunal File Numbers: 19-007826/AABS and 19-009548/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:

Tamer Tarchichi

Applicant

and

Jevco Insurance

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Respondent:

Laura Meschino, Counsel

Court Reporter:

Leigh Masse

Heard by Videoconference:

September 19, 2022

BACKGROUND

1The applicant was involved in an automobile accident on July 9, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010. The applicant was denied certain benefits by the respondent and submitted two applications to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was held on December 2, 2019, and a hearing was scheduled to take place from July 7-10, 2020. In June 2020, the Tribunal determined that the scheduled July 2020 hearing could not proceed in-person because of COVID, so a case conference resumption was scheduled for September 2020. On September 30, 2020, the parties participated in a case conference resumption, and a four-day videoconference hearing was scheduled for March 2021. In October 2020, the applicant’s representative was removed from the record.

3In February 2021, the applicant confirmed that he was still looking for a new representative and he submitted a hearing adjournment request. On February 18, 2021, Adjudicator Makhamra issued an Order adjourning the scheduled March 2021 hearing so that the applicant could obtain legal representation.

4On March 19, 2021, Adjudicator Grieves granted another case conference resumption. The applicant’s two LAT applications for files 19-007826/AABS and 19-009548/AABS were ordered to be heard together. The applicant also requested another hearing adjournment because he had yet to retain new legal counsel. A resumption of the case conference was then scheduled for June 18, 2021.

5On June 18, 2021, Adjudicator Grieves issued a Case Conference Report and Order in which she re-scheduled the videoconference hearing to April 19-22, 2022.

6On April 13, 2022, the applicant was contacted by the Tribunal by telephone, and he confirmed that he had yet to retain legal counsel.

7On April 14, 2022, the applicant submitted another adjournment request, citing that he was recovering from two recent surgeries and could not attend the scheduled hearing. Adjudicator Mazerolle issued an Adjournment Order granting the request on a peremptory basis. He noted that no further adjournments would be granted, unless a party could demonstrate exceptional circumstances requiring a further delay. Adjudicator Mazerolle ordered that the parties exchange their final witness list no later than 20 days before the start of the hearing, and that they exchange their document books no later than 10 days before the start of the hearing.

8On May 10, 2022, the Tribunal issued a Notice of Hearing with a hearing start date of September 19, 2022 at 9:30am.

9On September 16, 2022, the Tribunal made multiple attempts to contact the applicant by telephone and left a voicemail confirming the hearing start date and time. The Tribunal also attempted to contact the applicant by email on the same day, but there was no response.

10On the day of the hearing, September 19, 2022, I waited for 30 minutes after the scheduled start time for the applicant to join the videoconference. The Tribunal also attempted to contact the applicant by telephone twice after the scheduled start time, but both attempts were unsuccessful.

ISSUES IN DISPUTE

11The following preliminary issue is to be decided:

a. Is the applicant’s claim for income replacement benefits barred by the limitation period prescribed by the Schedule?

12The following substantive issues are to be decided:

a. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

b. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 per week for the period of July 16, 2016 to date and ongoing?

c. Is the applicant entitled to receive a medical benefit in the amount of $1316.86 for physiotherapy services recommended by Novo Healthnet Limited in a treatment plan submitted May 4, 2017 and denied by the respondent on July 25, 2017?

d. Is the applicant entitled to interest on any overdue payment of benefits?

e. Is the applicant entitled to an award under the Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

13The applicant did not attend the videoconference hearing and he failed to adduce any evidence to support his application. The applicant has therefore not met his onus on a balance of probabilities. His applications are dismissed.

ANALYSIS

14The applicant failed to attend the hearing scheduled for September 19, 2022. I am satisfied that the Tribunal took all reasonable steps to inform the applicant of the hearing date set for September 19, 2022. The applicant received notice of the hearing on May 10, 2022 and September 14, 2022. He was also made aware of the scheduled hearing on August 30 and September 9, 2022, when the respondent exchanged a copy of their final witness list and hearing document brief. The hearing date was noted in each of those communications. The Tribunal sent the applicant the videoconference Zoom link in emails September 14 and 16, 2022, and attempted to contact him by telephone on September 16 and again on September 19, after the scheduled hearing start time. Emails to the applicant went unanswered.

15Section 7(1), 7(2), and 7(3) of the Statutory Powers Procedure Act (“SPPA”) speak to non-attendance and notice. If a party receives notice of a hearing, in-person, videoconference, or in-writing, and fails to attend, the hearing may proceed in their absence with no further notice of the proceeding provided.

16On the day of the scheduled hearing, I waited for 30 minutes after the start time before deciding to proceed. Two attempts were made to contact the applicant by telephone after the scheduled start time, but both attempts were unsuccessful. I am satisfied that the applicant received notice of the September 19, 2022 hearing.

17With regards to the issues in dispute, the applicant has the burden of proof to demonstrate that on the balance of probabilities he meets the tests for each individual benefit. He failed to attend the hearing and failed to adduce any evidence, submissions, witnesses, or testimony that would support his entitlement to the issues in dispute.

18It is the applicant’s onus to establish entitlement to the benefits in dispute. Accordingly, the issues in dispute are denied and the applications are dismissed.