Licence Appeal Tribunal File Number: 20-002514/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:
Anthony Graham
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR:
Tyler Moore
APPEARANCES:
For the Applicant:
Anthony Graham, Applicant (did not attend)
For the Respondent:
Christine Mansbridge, Adjuster
Court Reporter:
Jean-Claude Rioux, Counsel
Bruce Porter
HEARD: by Videoconference:
September 14, 2022
OVERVIEW
1Anthony Graham, the applicant, was involved in an automobile accident on October 7, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A case conference for this matter was held on August 6, 2020. The applicant attended, and an oral hearing was ordered on consent to take place on June 28, 29, and 30, 2021.
3On June 28, 2021, the Tribunal issued an Order adjourning the scheduled hearing because the applicant failed to attend, despite confirmation from his representative at the time that he was aware of the hearing and had confirmed a week earlier that he would be attending. In accordance with Rules 3.4 and 3.5 of the Licence Appeal Tribunal, Animal Care Review Board, and the Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), the Tribunal put the applicant on notice of the Tribunal’s intention to dismiss the application as abandoned without a hearing.
4On September 28, 2021, a Notice of Hearing was sent to the parties with a new hearing start date of November 8, 2021.
5On November 4, 2021, the applicant requested an adjournment because counsel on record would no longer be representing him. The applicant needed time to retain new counsel.
6On November 9, 2021, the Tribunal issued a Motion Order adjourning the November 8, 2021 hearing so that the applicant could retain new counsel. The Tribunal set a second motion hearing for December 15, 2021 to discuss re-scheduling dates for the November 8 to 10, 2021 hearing. The Tribunal instructed the applicant to ensure that his contact information was updated with the Tribunal.
7On December 15, 2021, the Tribunal issued a Motion Order setting down a hearing for September 14, 15, and 16, 2022. The Order states that the parties were to exchange productions no later than June 3, 2022, to exchange finalized witness lists by August 15, 2022, and to file document briefs by August 29, 2022. The applicant had yet to obtain new counsel as of that time.
8On July 22, 2022 a Notice of Electronic Hearing was sent to the parties using the applicant’s last known address the Tribunal had on file.
9On September 14, 2022, the applicant failed to attend the re-scheduled hearing. The Tribunal attempted to contact the applicant after the scheduled start of the hearing but was only able to leave a voicemail. The applicant did not respond, and he has not provided any subsequent submissions.
RESULT
10The applicant’s claim is dismissed without a hearing.
ANALYSIS
11The onus is on the applicant to prove their claim and no evidence was proffered from the applicant. As a result, the applicant is not entitled to the benefits claimed and his application is dismissed. I am satisfied that the applicant received the Order dated June 28, 2021, and the Notice of Hearing dated September 28, 2021. Further, I find that he attended the Motion Hearing on December 15, 2021 when the September 14, 2022 hearing was scheduled.
12The Tribunal first put the applicant on notice of its intent to dismiss the application as abandoned, pursuant to Rule 3.5(a) on June 28, 2021, should he not attend the next scheduled hearing date. The applicant failed to attend the re-scheduled hearing on September 14, 2022, and no reasons for his absence have been provided under Rule 3.5(d).
13Accordingly, I dismiss the applicant’s claim without a hearing pursuant to Rule 3.4(d) as I find that the applicant has abandoned their claim.
ORDER
14The applicant’s application is dismissed without a hearing. He is not entitled to the benefits claimed as a result.
Released: July 4, 2023
__________________________
Tyler Moore
Vice-Chair