Brown v. Belair, 2022 CanLII 78913

Citation: Brown v. Belair, 2022 ONLAT 21-001816/AABS - P. I.

Licence Appeal Tribunal File Number: 21-001816/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:

Alethea Brown

Applicant

And

Belair

Respondent

PRELIMINARY ISSUE HEARING - DECISION AND ORDER

ADJUDICATOR: Taivi Lobu

APPEARANCES:

For the Applicant: Alethea Brown, Applicant

For the Respondent: Jyothirmai Rachael, Adjuster Maya Krishnaratne, Counsel

HEARD: by Videoconference: August 4, 2022

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant alleges she was a back-seat passenger in a car with her daughter and grandson when the car was struck by another vehicle. The applicant’s daughter was driving. The accident reportedly occurred on December 4, 2019.

2As a result of the accident, the applicant submitted a claim for accident benefits to the respondent. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule, Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

3The issue in dispute for this preliminary hearing is whether the applicant was involved in an accident on December 4, 2019.

4At a case conference held in September 2021, two additional issues had been raised: whether the applicant was entitled to costs of the preliminary issue hearing; and, if it was determined that the applicant had not been involved in an accident, whether the respondent was entitled to a repayment of medical benefits and costs of examinations. At the hearing of this matter however, the applicant did not request costs and the respondent did not speak to repayment. Accordingly, these issues will not be addressed.

result

5I find that the applicant was not in an accident on December 4, 2019. The application is dismissed.

ANALYSIS

6The burden of proof is on the applicant to demonstrate that she was involved in an accident.

7On July 23, 2021, the respondent made a formal request of the applicant’s legal representative at the time for information under section 33(1) of the Schedule. As part of the request, the applicant was to provide the insurer with the “Self-reporting collision center report along with any notes and photos” and “Information obtained at the scene of the accident from the third party.” Such documents were not provided.

8At the case conference held on September 23, 2021, Adjudicator Neilson made a production order on consent of both parties. This production order required that by January 19, 2022, the applicant provide the respondent with the following:

a. Self-reporting collision center’s report along with notes and photos;

b. Third Party information exchanged at the scene; and

c. Proof the accident was reported to the rental company.

9The applicant did not comply with the production order.

10The applicant has testified that she was a passenger in a Toyota at the time of the accident. However, the applicant has been unclear about details about this vehicle. At a June 23, 2021 examination-under-oath, the applicant was not certain about who owned the vehicle, indicating that her daughter had been responsible for it. The applicant showed uncertainty as to whether it was her daughter’s car or a rental but thought it was a rental. At the preliminary issue hearing the applicant testified that the car had been loaned to her daughter by a friend or someone who did car repairs.

11At the preliminary issue hearing the applicant testified that at the time of the accident the police had not been called; that information had been exchanged with the other driver; that she had gone with her daughter to a collision centre but they did not have the paperwork for the car; that it might have been necessary to make the accident report online; and that all of the papers and photos about the accident had been given to their legal representative who was no longer representing them.

12The adjuster for the respondent, Jyothirmai Rachael, also testified at the hearing. Based on information received on the applicant’s behalf, the adjuster made enquiries with car rental and insurance companies seeking corroborative details of the accident in question. Such enquiries did not produce corroborative evidence about the accident.

13The respondent took the position that the applicant has not proven that the accident had occurred. The respondent requested that the application before the Tribunal be dismissed on the basis of an adverse inference from the applicant’s failure to comply with the section 33 production request of July 23, 2021 and with the September 23, 2021 production order. The respondent submitted that the applicant’s evidence about the accident was unreliable and uncorroborated.

14I find that the applicant has had opportunity to respond to the respondent’s section 33 requests for information, to comply with the case conference production order, and to produce evidence for this preliminary issue hearing. The applicant has not been able to produce evidence to support her testimony that an accident occurred on or about December 4, 2019, as reported to the respondent. While the burden to show that an accident occurred is on the applicant, I also note that the respondent has taken measures to elicit corroborative information from third parties, yet this has not yielded any evidence to assist the applicant.

15Since there is no evidence to support the applicant’s testimony that an accident took place on December 4, 2019, I find that on the balance of probabilities the accident did not occur and the application must be dismissed.

DECISION AND ORDER

16I find that an accident has not occurred and the application is dismissed.