Licence Appeal Tribunal File Number: 21-012974/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:
Jesse Hess
Applicant
and
The Guarantee Company of North America
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
Mikal Daniel, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jesse Hess (the “applicant”) was involved in an automobile accident on July 31, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Guarantee Company of North America (the “respondent”) denied a treatment plan and interest. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to $1,865.50 for physiotherapy services, proposed by Sabga Physiotherapy in a treatment plan/OCF-18 dated December 11, 2020?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
3The application is dismissed. As the applicant has made no submissions for this hearing, I find that he has not met his evidentiary burden with regard to the treatment plan and interest in dispute.
ANALYSIS
Proceeding in the Absence of a Party
4I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.
5Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.
6The applicant’s counsel participated in a case conference on October 4, 2022 that resulted in a Case Conference Report and Order (“CCRO”) dated November 9, 2022 that set this matter down for a written hearing. The applicant’s counsel sent notice to the Tribunal and the respondent on November 10, 2022 that he was no longer serving as the applicant’s representative. The Tribunal emailed the applicant on that same day inquiring if he was seeking new legal representation or would be self-representing.
7On November 21, 2022, the Tribunal sent both parties a Notice of Written Hearing (“NoWH”) setting the hearing date on January 19, 2024. This hearing date was subsequently changed by the Tribunal, which sent an amended NoWH to the parties on December 19, 2022 rescheduling the hearing date to June 9, 2023. Both notices included the provision that the hearing adjudicator may not consider documents filed after deadlines ordered by the Tribunal, and that the Tribunal may render a decision without the participation of one or both of the parties if submissions are not made.
8The applicant failed to respond to any of the notifications listed above, or a reminder notice sent by the Tribunal on June 29, 2023 that submissions were overdue. He did not file any submissions for this hearing.
9The respondent filed its submissions for the hearing in accordance with the CCRO on May 24, 2023. It requested that this matter be dismissed as abandoned by the applicant, due to his failure to provide productions and submissions in accordance with the CCRO. The respondent also provided correspondence demonstrating that it had attempted to contact the applicant regarding productions and hearing timelines on November 25, 2022, January 11, 2023, and April 4, 2023, without response.
10There is no evidence that the applicant’s address changed or was otherwise incorrect in Tribunal records. If the applicant’s address differed from what was originally provided to the Tribunal, he had an obligation under Rule 4.4 of this Tribunal’s Common Rules to notify the Tribunal with the correct address.
11As a result, I find that the applicant received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that the applicant did not request a change of format from a written hearing under s. 6(4)(b) of the SPPA. Therefore, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant Has Not Met His Burden
12I find that the applicant had every opportunity to make submissions for this hearing and chose not to do so. Accordingly, he has failed to meet his burden to demonstrate entitlement to the benefits claimed.
13As held in Scarlett v. Belair Insurance, 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate that he is entitled to any claimed benefits. The applicant failed to meet this onus as he did not file written submissions or evidence with the Tribunal in accordance with the CCRO dated November 10, 2022. Further, he made no request to extend the deadlines to file submissions and evidence and did not respond to multiple contact attempts made by the Tribunal.
14Given the applicant’s failure to provide submissions, it is clear that he has not met his evidentiary burden. Accordingly, this application shall be dismissed.
ORDER
15As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden to establish entitlement to the treatment plan and interest in dispute.
16The application is dismissed.
Released: November 16, 2023
__________________________
Brett Todd
Vice-Chair