Citation and Parties
Licence Appeal Tribunal File Number: 22-003728/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:
Kambiz Ghazaei
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Kathy Noohi, Counsel
For the Respondent: Roxanne Hector, AB Specialist
HEARD: By Way of Written Submissions
OVERVIEW
1Kambiz Ghazaei (the “applicant”), was involved in an automobile accident on April 16, 2019, 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 Intact Insurance Company (the “respondent”) 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 statue barred from applying for an income replacement benefit (“IRB”) pursuant to section 31(1)(a) and 31(1)(b) of the Schedule?
RESULT
3The applicant may proceed with his claim for IRB and the substantive issues as set out in the Case Conference Report and Order (“Order”), dated August 15, 2022. The Tribunal will contact the parties and schedule dates for a 3-day Videoconference Hearing and paragraphs 3, 13, and 15 to 21 of the Order remains in effect.
ANALYSIS
4The respondent has failed to meet its onus to demonstrate that the applicant is statute barred from proceeding with his IRB claim pursuant to s.31 of the Schedule. As such, this application may proceed forward to a 3-day videoconference hearing.
5Both parties were in attendance for the case conference conducted on August 15, 2022, and specific written hearing submission deadlines were set. Further, as per the Order, the respondent was to file its submissions first. A written hearing was initially scheduled for June 16, 2023. The Tribunal on December 9, 2022, sent an amended Notice of Written Hearing to the parties which advised that a hearing was scheduled for May 12, 2023.
6Both parties failed to provide submissions with the Tribunal in accordance with the mandated deadline set out in the Order, nor did they request an extension of time to file their submissions. On September 12, 2023, the Tribunal contacted the parties and asked for an update on the within matter by September 15, 2023, as no submissions had been received to date. On September 15, 2023, the applicant provided his submissions via email. The applicant did not address why he late filed his submissions. In any event, the Tribunal contacted the respondent on September 12, 2023, and it did not provide any submissions.
7Proceeding 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.
8The Tribunal sent the Order to the applicant, his representative, and the respondent via email on September 15, 2022. Subsequently, the Tribunal served the Notice of Written Hearing and Amended Notice of Written Hearing to all parties via email on September 23, 2022 and December 9, 2022.
9I am satisfied that the parties received the Notice of Written Hearing and Amended Notice of Written Hearing as required by s.6(1) and 6(4) of the SPPA. I am also satisfied that the parties did not request a change of format from a written hearing pursuant to s. 6(4)(b) of the SPPA, therefore I may proceed pursuant to s. 7(2) with this written hearing.
10The parties were before the Tribunal and given the opportunity to participate in the written format. The respondent had an opportunity to make written submissions but chose not to do so.
11The evidentiary onus is on the respondent to demonstrate that the applicant be statute barred from proceeding with his IRB claim pursuant to s.31 of the Schedule. The respondent has failed to meet its burden to demonstrate that the applicant’s IRB claim should be statute barred. The respondent has filed no submissions and has not requested an extension