Licence Appeal Tribunal File Number: 19-013768/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:
Debra Jones
Applicant
v.
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Brett Todd (Vice-Chair) Rebecca Hines (Adjudicator)
APPEARANCES:
For the Applicant:
Debra Jones, Applicant (Did Not Attend)
Peter Cozzi, Counsel
For the Respondent:
Tara Bull, Senior Litigation Specialist
Danielle Ralph, Counsel
Court Reporter:
Beverley Killen
HEARD: by Videoconference:
September 8, 2022
OVERVIEW
1The applicant was involved in an automobile accident on November 14, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2The applicant has a lengthy history of non-attendance at case conferences. Although she attended the first case conference held regarding this application on March 26, 2020, she failed to attend subsequent case conferences scheduled for July 30, 2021, September 24, 2021, October 25, 2021, and February 4, 2022. No reasons were provided for this non-attendance.
3Correspondence and submissions received by the Tribunal from the applicant’s counsel indicated that he had not been able to contact his client. A skip trace attempt to locate the applicant in January 2022 was unsuccessful, leading to the assumption by her counsel that she was no longer in Canada.1
4The respondent submitted two written motions to dismiss this application as abandoned while it was at the case conference stage, on September 21, 2021 and on January 24, 2022. These motions were denied by the Tribunal at case conferences held on September 24, 2021 and February 4, 2022 due to ongoing concerns regarding the Covid-19 pandemic and a need to accommodate the applicant, who might be encountering health-related issues outside of Canada as a result.
5A videoconference hearing was scheduled to take place on September 8 and 9, 2022. The applicant was not in attendance. No explanation for the non-attendance was provided by her counsel.
ISSUES IN DISPUTE
6The issues to be decided in the hearing are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to $2,028.30 for hospital services, proposed by Scarborough General Hospital, in a treatment plan/OCF-18 (“treatment plan”), submitted on January 29, 2018 and denied on February 15, 2018?
Is the applicant entitled to the assessments proposed by East York Physio, as follows:
(i) $1,097.75 for physiotherapy services, in a treatment plan submitted on March 5, 2018 and denied on March 13, 2018; and
(ii) $85.00 for physiotherapy services, in a plan denied on March 30, 2018?
(iii) $22.69 for physiotherapy services, in a plan submitted on May 29, 2018 and denied on May 30, 2018?
Is the applicant entitled to a non-earner benefit of $185.00 per week from December 13, 2017 until August 21, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7We dismiss the application in its entirety. The applicant did not attend the videoconference hearing and failed to adduce any evidence to support her application. The applicant has therefore not met her onus, so the application is dismissed.
ANALYSIS AND DECISION
Preliminary Motion to Dismiss
8The applicant did not attend the start of the hearing at approximately 9:30 A.M. on the morning of September 8, 2022. Her counsel and representatives from the respondent did attend.
9Due to the applicant’s ongoing non-attendance at case conferences, another motion from the respondent to dismiss the application as abandoned under Rule 3.4(d) of the Tribunal’s Common Rules of Practice & Procedure2 (the “Rules”) was filed with the Tribunal on September 2, 2022 and was heard verbally at the beginning of the hearing.
10We heard from counsel representing both parties on this motion. Counsel for the applicant agreed that the application should be dismissed as abandoned, but that it should be dismissed without prejudice to allow the matter to continue if the applicant decided to resume her appeal at a future date. Counsel for the respondent requested that the application be dismissed with prejudice, due to the applicant’s non-attendance at four case conferences dating back well over a year and due to the applicant’s counsel’s admitted inability to locate his client.
11We denied the motion to dismiss the application as abandoned, either with prejudice or without. We began the hearing at approximately 10 A.M. on September 8, 2022, without the applicant in attendance.
Hearing
12Rule 4.4 of the Tribunal’s Rules requires an applicant to notify the Tribunal promptly of any change in contact information. Rules 6.1 and 6.2 further set out the process by which the Tribunal may serve a document on a party by regular mail and email. We are satisfied that the Tribunal sent the applicant proper notice of this scheduled hearing date on August 8, 2022, as it was sent to the applicant’s last known email address. Further, the Tribunal did not receive any undeliverable notices.
13It was made clear during the hearing and in documents filed for the hearing that the applicant’s counsel was aware of the scheduled hearing. The applicant’s counsel also spoke during the hearing of his firm’s numerous unsuccessful attempts to contact his client in recent years, including before the case conferences that she similarly did not attend.
14We are satisfied that the Tribunal complied with the Rules as noted above and that the applicant was properly notified of the hearing date and time. We find that the Tribunal made more than reasonable efforts to ensure that the applicant was aware of the hearing date and of her right to submit evidence to the Tribunal for that hearing. Submissions by the applicant’s counsel further demonstrated that he made significant additional efforts to contact the applicant, without success.
15Section 7(1) of the Statutory Powers and Procedure Act3 provides that where a Tribunal is satisfied that proper notice of a hearing has been provided to the parties it may proceed with the hearing in a party’s absence. Since we were satisfied that the applicant was provided with adequate notice, we proceeded with the hearing in the applicant’s absence. The applicant’s counsel objected to the hearing proceeding and refused to submit any evidence. Counsel for the respondent similarly denied the opportunity to submit any evidence.
16The applicant bears the burden of proof of establishing her entitlement to the benefits in dispute at this hearing. As the applicant did not participate in or present any evidence at the hearing, we are therefore unable to find that she is entitled to the benefits that she is seeking.
CONCLUSION
17Accordingly, the issues in dispute are denied and the applicant’s application is dismissed.
Released: February 14, 2023
__________________________
Brett Todd
Vice-Chair
__________________________
Rebecca Hines
Adjudicator
Footnotes
- Skip Trace Close Report on Debra Cheryl Ann Jones, The Corpa Group, dated January 24, 2022 (provided to the Tribunal by counsel Peter B. Cozzi via an affidavit of legal assistant Rosa Spada, January 28, 2022).
- Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended.
- Statutory Powers Procedures Act, R.S.O.,1990, c. S.22