Licence Appeal Tribunal File Number: 21-015152/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:
Rajesh Sareen
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Rajesh Sareen, Applicant
Shiwali Bhatia, Paralegal
For the Respondent:
Eric Boate, Counsel
Heard by way of submissions
OVERVIEW
1Rajesh Sareen, the applicant, was involved in an incident on January 31, 2020, 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, TD General Insurance Company (“TD”), 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 is barred from proceeding to a hearing because the incident on January 31, 2020 was not an “accident” pursuant to subsection 3(1) of the Schedule?
RESULT
3The application is dismissed. The applicant has not met his evidentiary burden to establish that he was involved in an accident.
BACKGROUND
4Both parties were in attendance for the case conference conducted on October 4, 2022. A written hearing was initially scheduled for June 30, 2023 and specific written hearing submission deadlines were set.
5The applicant’s written hearing submissions were never filed with the Tribunal. The applicant did not request an extension of time to file his submissions. The applicant did not respond after being served with the respondent’s submissions.
ANALYSIS
6Proceeding 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.
7The Tribunal sent a Case Conference Report and Order dated October 31, 2022, to the parties via email on October 31, 2022. The Tribunal sent the Notice of Written Hearing (“Notice”) to the applicant and his representative via email on November 25, 2022. The Tribunal then sent an amended Notice to the applicant and his counsel via email on December 23, 2022. They were advised to disregard the previous notice. The Notice advised that a written hearing was scheduled for June 30, 2023. 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.
8I 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.
9The 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.
10As 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.
11The 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 October 31, 2022. In addition, he filed no evidence to support his claims at the hearing.
12He made no request to extend the deadlines to file submissions and evidence and had never contacted the Tribunal for any other reason.
13Given the applicant’s failure to provide any hearing submissions or evidence, it is clear the applicant has not met his evidentiary burden with regard to the issues in dispute. This application shall be dismissed.
ORDER
14As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden to demonstrate that he was in an accident.
15The application is dismissed.
Released: July 4, 2023
__________________________
Tavlin Kaur, Adjudicator