Licence Appeal Tribunal File Number: 22-005615/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:
Damian Buckley
Applicant
and
Aviva General Insurance
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
No Submissions Filed
For the Respondent:
No Submissions Filed
HEARD:
By way of written submissions
OVERVIEW
1Damian Buckley (the “applicant”) was involved in an automobile accident on October 4, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance (the “respondent”) denied a claim for certain benefits. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
Is the applicant entitled to $2,460 for a chronic pain assessment, proposed by Rehab First in a treatment plan/OCF-18 dated November 19, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. As the applicant has made no submissions for this hearing, I find that he has not met his evidentiary burden with regard to the issues in dispute.
ANALYSIS
Proceeding in the Absence of the Parties
4I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.
5Proceeding 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 (the “SPPA”), requires the Tribunal to be satisfied that the absent party or parties received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.
6Both parties participated a case conference that was held on February 23, 2023. This resulted in the release of a Case Conference Report and Order (“CCRO”) on March 6, 2023 that detailed the issues in dispute as noted above and set this matter down for a written hearing.
7On April 4, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for December 1, 2023.
8As a result of the timeline established in the CCRO and the NoWH, the applicant’s written submissions were due on November 1, 2023 and the respondent’s written submissions were due on November 17, 2023. The applicant’s reply submissions, if any, were due on November 24, 2023.
9This NoWH also included the provisions that the hearing adjudicator may not consider documents filed after deadlines ordered by the Tribunal, and that the Tribunal may make a decision without the participation of one or both parties if submissions are not filed.
10On August 22, 2023, the applicant’s legal representative notified the Tribunal and the respondent by email that she was withdrawing from this matter. The Tribunal attempted to contact the applicant directly by phone, email, and regular mail to determine his intentions with this application on multiple occasions between September 11, 2023 and September 26, 2023.
11In November 2023, the applicant phoned and emailed the Tribunal and the respondent with conflicting information on how he was proceeding with his application. On November 3, 2023, the applicant first noted in an email that he was representing himself, but then sent a second email less than an hour later apologizing for the miscommunication and explaining that he was actually seeking new legal representation to assist with his application.
12On November 7, 2023, the applicant failed to properly answer a query from the respondent as to when he would be retaining new counsel, as his submissions were past due by that date. Instead, he asked the respondent why such information was required.
13At any rate, the applicant did not file submissions in accordance with the dates established in the CCRO and NoWH. He has also not filed submissions at any time since those dates.
14The respondent did not file submissions or evidence, either. However, the respondent did file a Notice of Motion (“NoM”) on November 10, 2023.
15Given the above, I am satisfied that the parties received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. Although it is readily apparent that both parties were in contact with the Tribunal, if there were any difficulties with communication, the parties were required to update the Tribunal with any changes to their contact information in writing, as established in Rule 4.4 of the LAT Rules.
16I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
17For the above reasons, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.
The Applicant Has Not Met His Burden
18I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. Accordingly, he has failed to meet his burden regarding the issues in dispute.
19As held in Scarlett v. Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate that he is entitled to any claimed benefits.
20The applicant has failed to meet this onus as he did not file written submissions with the Tribunal in accordance with the timeline established by the CCRO and the NoWH, as noted above. He also did not file submissions or evidence in the three months between the hearing date of November 17, 2023 and the date of this decision. While the applicant did email the Tribunal in December with a number of questions, these appear to have been answered by a Tribunal representative via email and phone.
21The respondent filed an NoM on November 6, 2023 seeking the dismissal of this application as abandoned due to the applicant’s failure to file submissions by the date established in the CCRO and NoWH. In a Motion Order dated November 10, 2023, the Tribunal scheduled this motion to be heard with the substantive matters at the written hearing. The applicant was invited to provide responding submissions by November 20, 2023, while the respondent who brought the motion was invited to file reply submissions by November 27, 2023. The applicant failed to provide any submissions regarding this NoM.
22I am always prepared to provide a certain amount of added latitude for a self-represented applicant attempting to navigate the Tribunal processes while still meeting submission deadlines. However, as of the date of this decision the applicant has had six months to find new legal representation, prepare to represent himself in this matter and file submissions and evidence, or request an extension of the Tribunal deadlines for this written hearing. As he has done none of the above, I conclude that he has no intention of continuing this application.
23Accordingly, this application shall be dismissed.
ORDER
24As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden regarding the issues in dispute.
25The application is dismissed.
Released: February 23, 2024
Brett Todd
Vice-Chair