22-001126/AABS

Licence Appeal Tribunal File Number: 22-001126/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:

Tom Dolan

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

ADJUDICATOR:

Laura Goulet

APPEARANCES:

For the Applicant:

Tom Dolan, Applicant (did not attend)

Kristy Moore, Counsel (did not attend)

For the Respondent:

Nadine Clarke, Claims Representative

Peter Durant, Counsel

HEARD: by Videoconference:

May 23, 2023

OVERVIEW

1Tom Dolan, the applicant, was involved in an automobile accident on November 15, 2018, 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, The Co-Operators Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The matter was scheduled for a 4-day hearing to commence at 9:30 a.m. on May 23, 2023.

3On the first day of the hearing, the applicant and their counsel did not attend. The respondent and their counsel were in attendance. Counsel for the respondent advised that he had discussions with the applicant’s counsel on Friday of the week prior and that she was aware of the hearing. A Notice of Videoconference Hearing was sent to both parties by the Tribunal on February 17, 2023.

ISSUES

4The issues in dispute 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 limit?

ii. Is the applicant entitled to an income replacement benefit, and, if so, in what amount and for what duration?

iii. Is the applicant precluded from proceeding with his application regarding entitlement to an income replacement benefit pursuant to section 55(2) of the Schedule?

iv. Is the applicant entitled to a medical benefit in the amount of $4,359.52 for a chiropractic treatment plan by Canadian Active Rehabilitation Centre, dated December 5, 2019?

v. Is the applicant entitled to an award pursuant to regulation 664?

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

RESULT

5After the commencement of the hearing the applicant filed a notice of withdrawal. Since the applicant withdrew their application, the Tribunal’s file is now closed.

ANALYSIS

6At the commencement of the hearing, the applicant and his counsel were not in attendance. At 9:44 a.m., the Case Management Officer (“CMO”) reached out by telephone to the applicant’s counsel’s assistant, who advised that they would be connecting. Despite waiting for several more minutes, the applicant and his counsel still did not join the videoconference hearing.

7The CMO had another telephone discussion with the applicant’s counsel’s assistant at 9:53 a.m. who had no further information. At 10:03 a.m. the applicant’s counsel’s assistant advised the CMO that the matter would not be proceeding and that a Notice of Withdrawal would be submitted soon.

8At 10:10 a.m., after standing the matter down for 40 minutes and waiting for the applicant and his counsel to join, I had not yet received information that the Notice of Withdrawal had been received by the Tribunal Registrar. The respondent and their counsel were still waiting on the line. At 10:15 a.m., I asked the CMO to contact the applicant’s counsel’s assistant again to advise counsel for the applicant to attend on the line, and further to advise the applicant’s counsel that if she does not attend within 10 minutes I will be proceeding with the hearing in their absence.

9The applicant’s counsel contacted the CMO by telephone at 10:23 a.m. and advised that the hearing is not proceeding and that a Notice of Withdrawal was already forwarded to the Tribunal. The applicant’s counsel did not attend on the line. At that point, the CMO was still not in receipt of the Notice of Withdrawal.

10Despite repeated attempts by the CMO to inform applicant’s counsel that the hearing is commencing, for which the applicant’s counsel had sufficient notice, counsel for the applicant refused to attend at the hearing. The Tribunal, the respondent and their counsel waited on the line until 10:26 a.m. at which point the hearing commenced, pursuant to section 7 of the Statutory Powers Procedure Act, which provides that where notice of an oral hearing has been given to a party to a proceeding, 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.

11It is the applicant’s burden to demonstrate entitlement to the benefits in dispute. As the applicant failed to attend, the applicant failed to present any evidence and therefore did not meet their burden. Accordingly, the Tribunal ended the hearing.

12After the hearing was complete, at 10:47 a.m., the CMO advised that she received an email from the Tribunal Registrar. The Notice of Withdrawal was received by the Tribunal Registrar at 10:06 a.m.

13The courteous thing for the applicant and his counsel to do was to attend for the scheduled hearing at 9:30 a.m. and advise the Tribunal that they were withdrawing the application. By refusing to attend the hearing and communicating only with the CMO while the hearing was under way is unacceptable. Sending a Notice of Withdrawal 36 minutes after the commencement of the hearing shows a lack of civility and courtesy to the Tribunal and other parties.

14In the circumstances, since the matter was withdrawn prior to the commencement of the hearing, the Tribunal will close its file.

ORDER

15The applicant withdrew their application. As such, the Tribunal’s file is now closed.