Licence Appeal Tribunal File Number: 20-005345/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:
Jude Francis
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Christopher Evans
APPEARANCES:
For the Applicant:
No One Appeared
For the Respondent:
Brittanny K Tinslay, Counsel
HEARD: by Videoconference:
November 15, 2022
BACKGROUND
1Jude Francis (the “applicant”) was involved in an automobile accident on February 9, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).1 The applicant was denied certain benefits by Certas Home and Auto Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2A three-day hearing was scheduled to start at 9:30 A.M. on November 15, 2022. When the applicant did not attend despite having received notice of the hearing, it proceeded without his participation pursuant to s. 7(3) of the Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”).
ISSUES
3The issues in dispute are as follows:
Is the applicant entitled to an income replacement benefit in the amount of $295.05 per week from July 20, 2019 to date and ongoing? The respondent seeks repayment of $6,448.96 paid from July 21, 2019 to January 31, 2020.
Is the applicant entitled to an award for unreasonably withheld or delayed payments under s. 10 of Regulation 664?2
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The application is dismissed.
PROCEDURAL HISTORY
5The application was filed on May 19, 2020. After two adjournments, a case conference was held on January 18, 2021. On consent, a four-day videoconference hearing was scheduled for November 29-30 and December 1-2, 2021. In a Motion Order dated November 15, 2021, those dates were vacated and a three-day hearing was scheduled for November 15-17, 2022.
6In an email to the Tribunal dated January 25, 2022, counsel for the applicant advised that she intended to remove herself as counsel of record. In emails dated May 3 and September 9, 2022, the Tribunal asked the applicant to confirm whether he intended to represent himself or obtain a legal representative. It did not receive a response.
7In a letter dated April 28, 2022, the respondent asked the applicant to advise whether he intended to continue with the application and whether he had obtained a new legal representative. It did not receive a response. In correspondence to the Tribunal dated September 20 and November 7, 2022, the respondent advised that it had attempted to contact the applicant on multiple occasions and had not received a response.
8The Tribunal sent a Notice of Videoconference Hearing to both parties by email on September 29, 2022. The Notice states: “If you do not attend the hearing, the Tribunal may make a decision in your absence and you will not be entitled to any further notice in the proceeding.”
9The deadline for serving and filing final witness lists and hearing briefs was November 1, 2022. Neither party filed any materials.
10The Tribunal provided the videoconference hearing link and other information to the parties by email on November 14, 2022.
11When the hearing began at 9:30 A.M. on November 15, 2022, the respondent was in attendance but not the applicant. The respondent advised that it had been unable to reach the applicant since his counsel got off the record.
12The Tribunal attempted to contact the applicant by telephone, but the number on file was out of service. The Tribunal contacted the applicant by email, but did not receive a response.
13After waiting until 10:00 A.M., I ordered that the hearing proceed in the applicant’s absence. The respondent did not call any evidence.
ANALYSIS
14Section 7(3) of the SPPA provides that where notice of an electronic hearing has been given to a party in a proceeding in accordance with the Act, and the party neither requests that the hearing proceed as an oral in-person hearing pursuant to s. 6(5(c) nor participates in the hearing in accordance with the notice, the Tribunal may proceed without the party’s participation and the party is not entitled to any further notice in the proceeding.
15The applicant failed to attend the hearing. The Tribunal provided him notice of the hearing in accordance with the SPPA, and there is no record that he requested an oral in-person hearing pursuant to s. 6(5)(c). Therefore, the hearing could proceed without his participation.
16The onus is on the applicant to prove that he is entitled to the income replacement benefit in dispute, an award under s. 10 of Regulation 664, and interest. Because he did not tender any evidence or make any submissions, he has not met that onus.
ORDER
17The application is dismissed.
Released: January 23, 2023
Christopher Evans
Adjudicator
Footnotes
- O Reg 34/10.
- RRO 1990, Reg 664: Automobile Insurance.