Licence Appeal Tribunal File Number: 23-001057/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:
Larry Erb
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gareth Neilson
APPEARANCES:
For the Applicant:
Larry Erb, Applicant (did not attend)
For the Respondent:
Matt McDonald, Representative
Ramandeep Pandher, Counsel
Court Reporter:
Prashanth Thambipillai
Heard by Videoconference:
February 12, 2024
OVERVIEW
1Larry Erb, the applicant, was involved in an automobile accident on January 12, 2018, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2This matter was scheduled for a five-day video conference hearing. The applicant did not attend the hearing and no reason for their absence was given. Despite attempts by the Tribunal to contact the applicant by phone, he did not join the hearing. I recessed the hearing for 30 minutes while attempts to contact the applicant were made. After 30 minutes, the hearing resumed.
3I note that the applicant failed to attend the scheduled case conference on August 21, 2023. Adjudicator Henein Thorn, in her case conference report and order released on August 30, 2023, noted that the applicant's counsel requested to be removed as the applicant's legal representative in this dispute and subsequently noted that "Applicant's counsel confirmed the contact details the Tribunal has on file for the applicant is the correct information. In fact, counsel sent the applicant a notice of today's case conference via email and registered mail on August 17th, 2023 and confirmed with the applicant via telephone on August 8th and 11, 2023." In the same order, Adjudicator Henein Thorn removed counsel as the applicant's representative and I had no expectation that counsel was to appear at this videoconference hearing.
4The respondent submitted that they have made repeated attempts to contact the applicant via email and couriered mail. In each instance, there was no return to sender or bounce back of the email. The respondent believes that based on the balance of probabilities they have the correct contact information for the applicant.
5In my view, it is appropriate for today's videoconference hearing to proceed in the absence of the applicant pursuant to section 7(3) of the Statutory Powers Procedure Act. I am satisfied the applicant received notice of the videoconference hearing on September 15, 2023. The Tribunal confirmed the applicant's contact information prior to the issuance of the notice of hearing. If the applicant had contact information that differed from the Tribunal's records, then the applicant had the responsibility under Rule 4.4 of the Tribunal's Common Rules of Practice and Procedure ("Common Rules") to notify the Tribunal and the respondent of the new contact information; no such update from the applicant exists. Further, s. 7(3) of the SPPA requires me to confirm if the applicant requested pursuant to s. 6(5)(c) for the hearing format to be changed from videoconference if he could show that an electronic hearing is likely to cause him significant prejudice, thus requiring an in-person hearing. Likewise, no such request exists in the Tribunal's records. For all these reasons and pursuant to Rule 3.1 of the Common Rules, I find that proceeding with the hearing in the absence of the applicant is an efficient and proportional resolution of this dispute.
ISSUES
6The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 12, 2018 to January 12, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7The applicant did not provide any evidence to the Tribunal in support of his claim. As a result, the applicant has not satisfied his burden to demonstrate that he is catastrophically impaired or entitled to the benefit in dispute. It follows that no interest is payable.
ANALYSIS
The applicant's application is dismissed
8The applicant failed to attend the hearing and failed to present evidence or make submissions. As it is the applicant's burden to demonstrate that he is catastrophically impaired and his entitlement to the non-earner benefit, and where the Tribunal was not presented with evidence from the applicant in support of his application, it follows that the applicant cannot be successful with his claim.
ORDER
9The Tribunal orders the following:
i. The applicant has not proven he is catastrophically impaired or that he is entitled to the non-earner benefit. As no benefit is overdue, no interest is payable.
ii. The application is dismissed.
Released: March 21, 2024
Gareth Neilson
Adjudicator