Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-014066/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:
Bruteau Baptiste
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
James M. Brown, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Bruteau Baptiste (the "applicant") was involved in an automobile accident on September 6, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Aviva Insurance Company of Canada (the "respondent") denied a claim for income replacement benefits ("IRB"). The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issue in dispute is:
- Is the applicant entitled to IRB in the amount of $400.00 per week from November 8, 2020 to date and ongoing?
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 IRB matter in dispute.
ANALYSIS
Proceeding in the Absence of a Party
4I find that the Tribunal has met its notice obligations and therefore 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 self-represented applicant participated in a case conference on August 18, 2022. This resulted in a Case Conference Report and Order ("CCRO") released in both English and French on October 17, 2022 that set this matter down for a written hearing.
7A Notice of Written Hearing ("NoWH") setting the hearing date on November 10, 2023 was emailed by the Tribunal to both parties on November 8, 2022. This hearing date was subsequently amended by the Tribunal. On December 16, 2022, the Tribunal sent a revised NoWH to both parties that the hearing date was rescheduled to July 14, 2023. A French version of the latter notice was sent to both parties on January 11, 2023. As a result of the latter NoWH, the applicant's submissions were due 30 days prior to the hearing date, on June 14, 2023, and the respondent's submissions were due 14 days prior to the hearing date, on June 30, 2023.
8All NoWH listed above included the provision that the hearing adjudicator may not consider documents filed after deadlines ordered by the Tribunal, and that the Tribunal may make a decision without the participation of one or both of the parties in the absence of their submissions.
9In addition, a reminder notice was sent to the applicant by the Tribunal on July 27, 2023 that his submissions were overdue.
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 reasonable 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 the 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 IRB claimed.
13As is 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.
14The applicant failed to meet this onus as he did not file written submissions or evidence with the Tribunal in accordance with both CCRO and the NoWH. Further, he made no request to extend the deadlines to file submissions and evidence and did not respond to multiple contact attempts.
15The respondent filed its submissions for the hearing on June 22, 2023, in accordance with the CCRO and the hearing date established by the revised NoWH. It requested that this matter be dismissed as abandoned by the applicant, due to his failure to provide productions and submissions. The respondent also provided correspondence demonstrating that it had attempted to contact the applicant regarding productions and hearing timelines on November 8, 2022, March 16, 2023, May 4, 2023, and June 15, 2023 without response.
16Given the applicant's failure to provide submissions, it is clear that he has not met his evidentiary burden. This application shall be dismissed.
ORDER
17As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden to establish entitlement to the IRB in dispute.
18The application is dismissed.
Released: December 12, 2023
Brett Todd
Vice-Chair