Licence Appeal Tribunal File Number: 19-013209/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:
Hamide Dervisholli
Applicant
and
State Farm Insurance
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Hamide Dervisholli – Self Rep
For the Respondent:
Andrea Lim, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hamide Dervisholli, the applicant, was involved in an incident on October 29, 2007, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”). The applicant was denied benefits by the respondent, State Farm Insurance (“State Farm”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issues in dispute to be decided are as follows:
i. Was the applicant involved in an accident as defined by s. 2(1) of the Schedule (1996)?
ii. Is the applicant liable to repay the respondent the amount of $67,621.07 for the benefits that the applicant received as a result of willful misrepresentation?
RESULT
3The application is dismissed. The applicant has not met his evidentiary burden to establish that he was involved in an accident.
ANALYSIS
4Proceeding 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.
5The Tribunal sent a Case Conference Report and Order dated October 5, 2022 to the parties via email on October 5, 2022. The Tribunal sent the Notice of Written Hearing (“Notice”) to the applicant and his representative via email on October 14, 2022. The Tribunal then sent an amended Notice to the applicant and his counsel via email on December 9, 2022. They were advised to disregard the previous notice. The Notice advised that a written hearing was scheduled for June 16, 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.
6I 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.
7The 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.
8As 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.
9The 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 5, 2022. In addition, he filed no evidence to support his claims at the hearing.
10He made no request to extend the deadlines to file submissions and evidence and had never contacted the Tribunal for any other reason.
11Given 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
12As 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.
13The application is dismissed.
Released: July 24, 2023
Tavlin Kaur
Adjudicator