Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 20-006856/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:
Cory Trunks
Applicant
and
Sonnet Insurance Company
Respondent
DECISION AND ORDER
VICE-CHAIR: Sandeep Johal
APPEARANCES:
For the Applicant: Cory Trunks, self-represented, did not attend
For the Respondent: Sandra Reid, Adjuster Mai Nguyen, Counsel
HEARD: by Videoconference: October 19, 2022
REASONS FOR DECISION [AND/OR ORDER]
BACKGROUND
1The applicant was involved in an automobile accident on November 16, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").
2This file has been with the Tribunal for over 800 days without a hearing on the issues in dispute. A two-day hearing was scheduled to begin on December 6, 2021 on the issues of an income replacement benefit, the Minor Injury Guideline and medical and rehabilitation benefits.
3This videoconference hearing was scheduled to deal with the issue of the income replacement benefit and the remaining issues in dispute were to be heard in writing.
4The hearing was adjourned on two separate occasions and the most recent adjournment was in April 2022 on the first day of the hearing as the applicant changed his legal representation and sought an adjournment as new counsel took carriage of the file.
5A new hearing was set for October 19, 2022. On September 29, 2022, the Tribunal received an email from the applicant's representative withdrawing themselves from the record. The applicant's now former counsel forwarded the applicant's email address and telephone number to the Tribunal.
6The notice of hearing was sent by the Tribunal to the applicant's email address and the respondent confirmed that it also attempted to contact the applicant but received no response. The respondent also submitted that it sent a copy of the notice of hearing and other documents for the hearing by registered mail to the applicant.
7At the hearing, the applicant did not attend. The matter was stood down for one hour to allow the applicant to attend, and I requested the case management officer to attempt to contact the applicant by telephone and email. However, the telephone number was no longer in service, and the applicant did not reply or acknowledge the email communication.
8Section 7(3) of the Statutory Powers Procedure Act ("SPPA") permits this Tribunal to proceed with the electronic hearing, i.e., by video, where a party fails to attend. I must then be satisfied that a proper Notice of Hearing was issued to the applicant. Sections 6(1), 6(2) and 6(5) of the SPPA specify the information required to be in a proper Notice of Hearing. This includes the date, time, purpose and the details about the manner in which the hearing will be held. Having reviewed the Notice of Hearing for this video hearing, I find that it contains the required information. Further, s. 6(5)(c) of the SPPA requires that the Notice of Hearing inform all parties that they may request an oral hearing, i.e., in-person, where the requesting party can satisfy the Tribunal that it would be significantly prejudiced by an electronic hearing. Having reviewed the Tribunal's file for this matter, I find no such request by the applicant and no Tribunal order changing this hearing's method. I am satisfied that this video hearing was convened properly, and that the applicant was sent the Notice of Hearing to his address on file.
9At the hearing, the respondent sought to add the issue of costs in accordance with Rule 19 of the Tribunal's Common Rules of Practice and Procedure. Rule 19 allows the Tribunal to consider a request for costs at any time prior to the release of the Tribunal's decision, and I agreed to add this issue to the issues in dispute.
ISSUES
10The issues to be decided in the videoconference hearing are:
a. Is the applicant entitled to an income replacement benefit in the amount of $400 per week from November 29, 2019 to date and ongoing submitted January 10, 2020 and denied January 10, 2020?
11From the previous adjourned hearing in April 2022, the following issues are to be heard in writing after the videoconference hearing:
a. Is the applicant entitled to the cost of an examination for $1,895.30 for an Activities of Daily Living Assessment recommended by Unison Medical Assessments submitted January 8, 2019 and denied on January 16, 2019?
b. Is the applicant entitled to the cost of an examination for $2,197.92 for a psychological assessment recommended by Unison Medical Assessments submitted January 18, 2019 and denied on April 12, 2019?
c. Is the applicant entitled to the cost of an examination for $1,995.00 for an orthopaedic assessment recommended by Unison Medical Assessments submitted January 2, 2019 and denied on April 12, 2019?
d. Is the applicant entitled to the cost of an examination for $1,999.01 for a chronic pain assessment recommended by Unison Medical Assessments submitted December 5, 2019 and denied on December 11, 2019?
e. Is the applicant entitled to a medical benefit for $2,485.94 for psychological treatment recommended by Unison Medical Assessments submitted December 13, 2019 and denied December 19, 2019?
f. Is the applicant entitled to the cost of an examination for $2,185.18 for a neurological assessment recommended by Unison Medical Assessments submitted January 13, 2020 and denied on January 16, 2020?
g. Is the applicant's impairment of a nature that it falls within the Minor Injury Guideline?
h. Is the applicant entitled to interest on any overdue payment of benefits?
i. Is the respondent entitled to costs?
RESULT
12The applicant is not entitled to an income replacement benefit
13The written submissions on the remaining issues in dispute are due as follow:
a. The applicant's submissions and evidence shall be served and filed no later than 30 days after the release of this decision up to a maximum of 10 pages;
b. The respondent's submissions and evidence shall be served and filed no later than 45 days after the release of this decision up to a maximum of 10 pages; and,
c. The applicant's reply submissions, if any, shall be served and filed no later than 5 business days after the receipt of the respondent's written submissions up to a maximum of 5 pages.
d. The page limits are exclusive of evidence and case law.
e. Submissions shall be double-spaced, 12-point, Arial or Times New Roman font and be indexed, bookmarked/tabbed and consecutively page numbered. Submissions shall make specific reference to the evidence and law by tab and page number. Evidence not referred to may not be reviewed.
ANALYSIS
14The applicant bears the burden of proving both his entitlement to an income replacement benefit and the amount of such benefit on a balance of probabilities, i.e., more likely than not.
15As a result of the applicant not providing any submissions or evidence for the purpose of the hearing, the applicant has not met his burden of proving his entitlement to an income replacement benefit, and I therefore find that the applicant is not entitled to an income replacement benefit.
ORDER
16The applicant is not entitled to an income replacement benefit
17The written submissions on the remaining issues in dispute are to be provided as follows:
a. The applicant's submissions and evidence shall be served and filed no later than 30 days after the release of this decision up to a maximum of 10 pages;
b. The respondent's submissions and evidence shall be served and filed no later than 45 days after the release of this decision up to a maximum of 10 pages; and,
c. The applicant's reply submissions, if any, shall be served and filed no later than 5 business days after the receipt of the respondent's written submissions up to a maximum of 5 pages.
d. The page limits are exclusive of evidence and case law.
e. Submissions shall be double-spaced, 12-point, Arial or Times New Roman font and be indexed, bookmarked/tabbed and consecutively page numbered. Submissions shall make specific reference to the evidence and law by tab and page number. Evidence not referred to may not be reviewed.
Released: December 2, 2022
Sandeep Johal
Vice-Chair