Hamilton v. Dominion of Canada General Insurance Company, 2023 CanLII 56131

Licence Appeal Tribunal

Citation: Hamilton v. Dominion of Canada General Insurance Company, 2023 ONLAT 21-005530/AABS

Licence Appeal Tribunal File Number: 21-005530/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:

Melvin Hamilton

Applicant

and

The Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: No one appeared

For the Respondent: No one appeared

HEARD: By way of written submissions

OVERVIEW

1Melvin Hamilton ("the Applicant") was involved in an automobile accident on March 31, 2019 and sought benefits from The Dominion of Canada Insurance Company (Travelers) ("the Respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The Respondent characterized the Applicant's injuries as falling within the Minor Injury Guideline ("the MIG") and denied him entitlement to non-earner benefits ("NEBs") and three treatment and assessment plans. The Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The Parties participated in a case conference and identified the issues in dispute but were unable to resolve them. On consent, the Parties were ordered to a hearing in writing to resolve the issues in dispute. To-date, neither party has made any written submissions for the hearing.

ISSUES

3The issues in dispute are:

i. Are the Applicant's injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 funding limit for medical and rehabilitation benefits?

ii. Is the Applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period from April 30, 2019, to March 31, 2021?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a psychological assessment proposed by Downsview Healthcare Inc. in a treatment plan dated December 6, 2019?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for other goods and services of a medical nature proposed by Downsview Healthcare Inc. in a treatment plan dated January 29, 2020?

v. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for psychological services proposed by Downsview Healthcare Inc. in a treatment plan dated May 4, 2020?

vi. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant made no submissions and produced no evidence to support the Application. Consequently, the Applicant has not met his evidentiary burden to demonstrate entitlement to the benefits claimed.

5The Application is dismissed.

BACKGROUND

6The Applicant initiated an Application with the Tribunal on or around May 4, 2021. A case conference was scheduled for April 12, 2022 and a notice of case conference was delivered to counsel for the Applicant and counsel for the Respondent via email, and to the Applicant via regular mail. The Parties participated in the case conference and the issues in dispute were ordered to a hearing in writing, scheduled for December 16, 2022, with deadlines provided for written submission and evidence.

7A Notice of Written Hearing ("the Notice") was emailed to counsel for the Applicant and counsel for the Respondent, and mailed to the Applicant, on April 20, 2022. The Notice outlined when written submissions for the hearing were due. To-date, no party has filed written submissions for this hearing.

8The Tribunal emailed counsel for the Applicant and counsel for the Respondent on January 10, 2023, included a copy of The Notice, and asked if the parties reached a resolution on the issues. Neither party replied to the January 10, 2023 email and the Tribunal has not received any notice that the matter was resolved or withdrawn.

ANALYSIS

9I find that the Applicant has failed to meet his burden to demonstrate that he is entitled to the benefits claimed. His Application is dismissed.

10Proceeding with a written hearing where a party fails to participate, pursuant to section 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 sections 6(1) and 6(4) of the SPPA.

11The Tribunal sent a Case Conference Report and Order dated April 12, 2022 to the parties via email on April 14, 2022. The Tribunal sent the Notice to the Applicant via mail and his counsel via email on April 20, 2022. The Notice advised that a written hearing was scheduled for December 16, 2022. The Notice also advised the parties to disclose and file their evidence in advance of the hearing and that documents filed after the deadlines ordered by the Tribunal may not be considered by the adjudicator hearing the matter.

12I am satisfied that the Applicant received the Notice as required by sections 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 section 6(4)(b) of the SPPA, therefore I may proceed under section 7(2) with this written hearing.

13The parties were before the Tribunal and given the opportunity to participate in the written format. The Applicant had an opportunity to make written submissions but chose not to do so.

14As outlined in Scarlett v Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the Applicant to demonstrate that he is entitled to the benefits claimed.

15The Applicant has failed to meet his burden to demonstrate that he is entitled to the benefits claimed. The Applicant never filed written submissions with the Tribunal in accordance with the Case Conference Report and Order dated April 12, 2022. In addition, he filed no evidence to support his claims at the hearing.

16He made no request to extend the deadlines to file submissions and evidence and had never contacted the Tribunal for any other reason.

17The Respondent has also failed to participate in the hearing; however, as the burden to prove entitlement lies with the Applicant, I need not consider the Respondent's silence at this point. Six months have passed since the written hearing date of December 16, 2022. In that time, neither party filed written submissions as per the deadlines imposed by the Tribunal.

CONCLUSION AND ORDER

18The Applicant has failed to meet his burden to demonstrate that he is entitled to the benefits claimed in his Application. He was provided an opportunity to file written submissions and evidence but chose not to do so.

19The Application is dismissed.