Licence Appeal Tribunal File Number: 22-012133/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:
Shawn Harris
Applicant
and
Gore Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Sunish Uppal, Counsel
For the Respondent:
Arthur Camporese, Counsel
Heard by way of written submissions
OVERVIEW
1Shawn Harris, the applicant, was involved in an incident on December 4, 2018, 2007, 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, Gore Mutual Insurance Company (“Gore”), 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 at section 3(1) of the Schedule?
RESULT
3The applicant has not met his evidentiary burden to establish that he was involved in an accident. The application is dismissed.
ANALYSIS
4The parties attended a case conference before the Tribunal on June 12, 2023. The respondent raised a preliminary issue. The parties agreed to all of the procedural aspects of the preliminary issue hearing such as the production and submission timelines. The Tribunal sent the Case Conference Report and Order (CCR/O) to the parties via email on June 14, 2023. I note that the CCR/O was sent to the firm that is representing the applicant.
5The applicant’s submissions were due 35 days after the case conference, i.e. July 17, 2023; however, the Tribunal does not have any submissions from the applicant. The respondent filed their submissions and served them on the applicant’s counsel.
6As 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. In Shakur v. Pilot Insurance Co, 1990 CanLII 6671 (ON CA), the Court of Appeal stated that “it is fundamental insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy.”
7It is the applicant’s onus to prove that he was involved in an accident. The applicant failed to file any submissions with the Tribunal as required by the CCR/O, nor has the applicant requested an extension to file his submissions. Accordingly, the applicant has failed to meet his burden to demonstrate that he is entitled to the benefits claimed, including whether the incident in question is an “accident” within the meaning of the Schedule.
ORDER
8The application is dismissed.
9The dates for the substantive issue hearing will be vacated by the Tribunal.
Released: July 28, 2023
__________________________
Tavlin Kaur
Adjudicator