Licence Appeal Tribunal File Number: 21-005446/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:
Evelyn Melkom Kujian
Applicant
and
Certas Home and Auto Insurance
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Evelyn Melkom Kujian, Applicant
Evgenia Babayev, Counsel
For the Respondent:
Shikha Blessing, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Evelyn Melkom Kujian, the applicant, was involved in an incident on May 3, 2019, 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 benefits by the respondent, Certas Home and Auto Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue in dispute is whether the applicant was involved in an “accident”?
RESULT
3The application is dismissed. The applicant has not met her evidentiary burden to establish that she was involved in an accident.
BACKGROUND
4Both parties were in attendance for the case conference conducted on March 28, 2022. A written hearing was scheduled for November 30, 2022 and specific written hearing submission deadlines were set.
5On December 14, 2022, the respondent notified the Tribunal that they never received the applicant’s submissions and opposed any request by the applicant to submit her submissions. The respondent requested that the matter be dismissed.
6The applicant’s written hearing submissions were never filed with the Tribunal. The applicant did not request an extension of time to file her submissions. The applicant did not respond after being served with the respondent’s submissions. More than seven months has passed since the applicant’s initial submission deadline and the November 30, 2022 written hearing date.
ANALYSIS
7Proceeding 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.
8The Tribunal sent a Case Conference Report and Order (“CCR/O”) to the parties via email on March 29, 2022. An amended CCR/O was sent to the parties via email on March 31, 2022. The Tribunal sent the Notice of Written Hearing (“Notice”) to the applicant and her representative via email on April 4, 2022. The Notice advised that a written hearing was scheduled for November 30, 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.
9I am satisfied that the applicant received the Notice as required by s. 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 under s. 7(2) with this written hearing.
10The 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.
11As outlined in Scarlett v Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate that she is entitled to the benefits claimed.
12The applicant has failed to meet her burden to demonstrate that she 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, she filed no evidence to support her claim at the hearing.
13She made no request to extend the deadlines to file submissions and evidence and had never contacted the Tribunal for any other reason.
14Given the applicant’s failure to provide any hearing submissions or evidence, it is clear the applicant has not met her evidentiary burden with regard to the issues in dispute. This application shall be dismissed.
ORDER
15As the applicant has failed to provide any submissions, it follows that she has not met her evidentiary burden to demonstrate that she was in an accident.
16The application is dismissed.
Released: July 4, 2023
Tavlin Kaur
Adjudicator