Licence Appeal Tribunal File Number: 21-006233/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:
Glenn Watson
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
No one appearing
For the Respondent:
Laura D. Wright, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Glenn Watson, (“the applicant”), was involved in an incident on August 1, 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 MVACF (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The Case Conference Order of Adjudicator Corapi, dated May 2, 2022 (“Tribunal’s Order”), noted one preliminary issue to be determined:
i. Was the applicant involved in an “accident” as defined by s.3(1) of the Schedule?
3Adjudicator Corapi further determined that the preliminary issue would be determined prior to the substantive issues identified in the Tribunal’s Order. The Tribunal’s Order further ordered that after the release of the preliminary hearing decision, either party may contact the Tribunal to schedule a case conference on the remaining issues in dispute. At paragraph 14 of the Tribunal’s Order, it was noted that these orders were subject to the hearing adjudicator’s discretion.
SUBSTANTIVE ISSUES
4The substantive issues listed in the Tribunal’s Order are as follows:
i. Is the applicant entitled to $1,920.53 for psychological services proposed by Q Medical in a treatment plan which was denied on December 3, 2020?
ii. Is the applicant entitled to $1,900.00 for assistive devices proposed by Q Medical in a treatment plan which was denied on April 28, 2021?
iii. Is the applicant entitled to $2,486.00 for a cost of examination proposed by Q Medical in a treatment plan which was denied on April 13, 2021?
iv. Is the respondent liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The application is dismissed.
6The applicant has not met his evidentiary burden to establish that he was involved in an accident as defined by s.3(1) of the Schedule. As the applicant has failed to establish that he was involved in an accident, he cannot proceed with the substantive issues as automobile accident benefits are available for only individuals that meet s.3(1) of the Schedule. Given there are no benefits owed, the applicant is not entitled to an award, nor interest.
ANALYSIS
7The onus is on the applicant to establish on a balance of probabilities that he was involved in an accident as defined under s.3(1) of the Schedule. He made no submissions and tendered no evidence in support of his claims before the Tribunal. Therefore, I find that the applicant has failed to meet his onus and dismiss the application.
8A case conference was conducted on May 2, 2022. The applicant attended the case conference with his previous representative. The Tribunal ordered that the matter would proceed to a written hearing on a date to be set by the LAT. The Tribunal further set out deadlines for production exchanges and for written submissions. According to the Tribunal’s Order, the applicant was required to provide his submissions 14 calendar days prior to the hearing. On May 20, 2022, the Tribunal sent a Notice of Written Hearing which advised the parties a written hearing was scheduled for January 27, 2023.
9On November 14, 2022, the Tribunal received email correspondence from the applicant’s former legal representative indicating that they no longer represented the applicant. The applicant’s former legal representative provided the last known contact information for the applicant which included an: email address, mailing address, and phone number. On November 21, 2022, the Tribunal contacted the applicant by email and asked him to advise whether he had retained a new representative; whether he was proceeding with the subject hearing unrepresented; or withdrawing the application. The Tribunal further enclosed a copy of the Notice of Written Hearing. Further, on December 12, 2022, the Tribunal sent correspondence to the applicant at the mailing address provided by his previous representative. The Tribunal asked the applicant to advise the Tribunal by December 23, 2022; whether he retained a new representative, was proceeding forward as a self-represented party or withdrawing the application. Further, the correspondence reminded the applicant that his written submissions and evidence were due on January 13, 2023. The Tribunal further enclosed the Tribunal’s Order and Notice of Written Hearing to this correspondence.
10The respondent provided its written submissions and evidence on December 28, 2022. The submissions were served on the Tribunal and directly on the applicant via email as per the signed Certificate of Service dated December 28, 2022. On January 5, 2023, the respondent resubmitted via email its evidence and submissions as one PDF document. The respondent advised via email that the additional copies were sent by regular mail to the applicant but did not complete a Certificate of Service to this effect.
11On December 29, 2022, and January 18, 2023, the Tribunal attempted to contact the applicant at the phone number provided by his previous representative. However, there was no answer, and the voicemail appeared to belong to a different individual. Pursuant to Rule 4.4 of the Tribunal’s Common Rules of Practice and Procedure (“the Rules”) the applicant is obliged to provide the Tribunal with his updated contact information, which would include a new phone number. The applicant has failed to do so.
12The applicant failed to comply with the Tribunal’s Order and failed to provide any submissions by the deadlines imposed by the Tribunal. The applicant did not contact the Tribunal, seek an adjournment of the hearing, or seek any other procedural remedy related to the written hearing scheduled for January 27, 2023.
13The applicant did not respond after being served with the respondent’s written submissions. The applicant’s written hearing submissions were never filed with the Tribunal. More than 6 months have now elapsed since the applicant’s initial submission deadline and the January 27, 2023, written hearing date.
14The applicant has been afforded multiple opportunities to provide submissions, or any procedural update regarding these submissions, and has failed to do so.
15Given the applicant’s failure to provide any hearing submissions or evidence, it is clear the applicant has not met his evidentiary burden to demonstrate that he was involved in an accident as defined by s.3(1) of the Schedule.
16I further find that as the applicant has failed to establish that he was involved in an accident, he is not entitled to the substantive issues listed in the Tribunal’s Order.
17This application shall be dismissed.
ORDER
18As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden to demonstrate that he was involved in an accident and would be entitled to the benefits in dispute. Given that there are no benefits owed, the applicant is not entitled to an award, nor interest.
19The application is dismissed.
Released: August 15, 2023
Tanjoyt Deol
Adjudicator