Licence Appeal Tribunal File Number: 21-003518/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:
Rimoun Faltas
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATORS:
Michael Beauchesne
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Rimoun Faltas, Applicant (did not attend)
For the Respondent:
Ian Heritage, Adjuster
Gurpreet Singh, Counsel
Court Reporter:
Breanna Clancy
Held by Videoconference:
March 14, 2023
OVERVIEW
1This proceeding concerns a dispute between an insured person (“applicant”) and an insurer (“respondent”) about automobile insurance benefits under the Statutory Accident Benefits Schedule1 (“Schedule”) arising out of a motor vehicle accident on January 21, 2019.
PRELIMINARY MATTER
2The hearing for this matter began on March 14, 2023, at 9:30 AM. The applicant—who is self-represented—did not appear and remained absent from the proceedings for the next 30 minutes. During this time, we requested the Tribunal attempt to reach out to the applicant to confirm his intentions to appear. We invited submissions from respondent’s counsel at 10 AM, who submitted the hearing should go ahead without the applicant. The hearing concluded at 10:10 AM.
Due notice of the hearing was provided
3Section 7(1) of the Statutory Power Procedures Act (“SPPA”) addresses the effect of non-attendance at a hearing after due notice. That section reads: “where notice of an oral hearing has been given to a party to a proceeding in accordance with [the SPPA], and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.”
4We find the applicant was given due notice of the hearing. We considered the procedural history of this file in arriving at this finding, the details of which are:
(i) The applicant attended a case conference on October 14, 2022, at which time the parties confirmed arrangements to move this matter to a videoconference hearing. Applicant’s counsel (Jonathan Schneider) confirmed availability for a 3-day hearing the week of March 13, 2023, in an email dated December 2, 2022.
(ii) The Tribunal sent a Notice of Videoconference Hearing (“Notice”) to the applicant via counsel on December 9, 2022. Counsel was instructed to ensure the applicant was informed of the videoconference—scheduled for March 14-16, 2023—as per the Notice. We have no reason to believe this was not done.
(iii) In fact, on January 2, 2023, counsel attached a copy of the Notice to an email he sent to both the applicant and the Tribunal, advising he was no longer retained to represent the applicant on this matter. During the hearing, respondent’s counsel shared that her firm had received an email from the applicant on January 16, 2023, which confirmed he was self-represented. The applicant’s email address in both instances was the same.
(iv) Since that time, the applicant was served—via email to the same address—at least two documents from the respondent, including a Declaration of Representation and a Notice of Motion. The applicant also received, via email to the same address, a Notice of Motion at Scheduled Event from the Tribunal.
(v) At no time since January 2, 2023, did the applicant contact the Tribunal to correct or update the contact information provided by his counsel.
5We find these facts show the applicant received notice of the hearing. There were multiple other hearing-related documents sent to the applicant after notice was provided, all of which showed the matter was going ahead on schedule. The email address used to communicate the notice and subsequent documents to the applicant was, in all cases, the same email address the applicant used to contact the law firm retained by the respondent; this shows, on a balance of probabilities, that the applicant’s email address was valid and working at the time the hearing notices were provided, and likely thereafter up to the hearing as well.
6As such, we can only conclude the applicant failed to attend the hearing despite receiving due notice, and thereby rely on the discretion afforded by s. 7(1) of the SPPA to go ahead with the hearing in the applicant’s absence without further notice.
ISSUES
7The issues to be decided are:
(i) 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 Minor Injury Guideline (“MIG”) limit?
(ii) Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from August 17, 2019, to date and ongoing?
(iii) Is the applicant entitled to a psychological assessment in the amount of $2,486.00, proposed by MediAssess in a treatment plan dated April 20, 2020?
(iv) Is the applicant entitled to a chronic pain assessment on the amount of $2,486.00, proposed by Gold Standard Health Pain Management Clinic in a treatment plan dated April 22, 2021?
(v) Is the applicant entitled to physiotherapy services in the amount of $2,931.44, proposed by Activa in a treatment plan dated September 7, 2022?
(vi) Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
(vii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
8The applicant’s injuries are predominantly minor and subject to treatment within the $3,500.00 MIG limit.
9The applicant is not entitled to the treatment plans or interest.
10The respondent is not liable to pay an award.
ANALYSIS
11The applicant did not appear at the scheduled hearing to provide testimony or present his case. The applicant did not supply a witness list or evidence brief to support his claims.
12It is well settled that the applicant bears the onus of proving, on a balance of probabilities, that he should be removed from the MIG2. We find the applicant has failed to meet his onus of proof, as he produced no evidence to show his impairments are not predominantly minor in nature. Similarly, we find the applicant failed to prove the disputed treatment plans are reasonable and necessary because he did not put forward any evidence to support his claim. As such, the applicant’s claim for interest on those treatment plans must also fail.
13Indeed, where the applicant did not appear at the hearing after receiving due notice and failed to present a case or lead evidence to meet his burden, it follows that his application must fail.
14We also find the respondent is not liable to pay an award under s. 10 of Reg. 664 because the applicant did not produce any evidence to show the insurer unreasonably withheld or delayed payments to the applicant.
ORDER
15The application is dismissed.
Released: April 3, 2023
___________________________
Michael Beauchesne
Adjudicator
___________________________
Mary Henein Thorn
Adjudicator
Footnotes
- Effective September 1, 2010 (including amendments effective June 1, 2016)
- Scarlett v. Belair, 2015 ONSC 3635