Citation: Forbes v. RSA Insurance, 2024 ONLAT 20-009625/AABS

Licence Appeal Tribunal File Number: 20-009625/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:

Vincent Forbes

Applicant

and

RSA Insurance

Respondent

DECISION

VICE-CHAIR:

Jeremy A. Roberts

APPEARANCES:

For the Applicant:

Vincent Forbes (did not attend)

For the Respondent:

Nestor E. Kostyniuk, Counsel

HEARD: by Videoconference:

October 30, 2023

OVERVIEW

1Vincent Forbes, the applicant, was involved in an automobile accident on September 3, 2016, 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, RSA Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The six-day hearing was scheduled to commence on October 30, 2023. Due to technical difficulties, the hearing started 20 minutes late and the respondent was the only party to join the proceeding. I waited 30 minutes for the applicant to join the videoconference before electing to proceed with the hearing.

3When considering how to proceed when an applicant does not attend the hearing, there are several relevant authorities that should be considered. Firstly, Rule 3.7.1 of the Licence Appeal Tribunal Rules (2023) (LAT Rules) provides the Tribunal the authority (through s. 7(3) of the Statutory Powers Procedure Act (“SPPA”)) to proceed with the hearing in the absence of a party if that party does not arrive at the hearing 30-minutes after the scheduled start time and if that party received proper notice.

4When considering the issue of proper notice, Rules 6.1 and 6.2 of the LAT Rules further set out the process by which the Tribunal may serve a document on a party by regular mail. Lastly, Rule 4.4 requires an applicant to notify the Tribunal promptly of any change in contact information.

5I am satisfied that the Tribunal sent the applicant proper notice of this scheduled hearing date for the following reasons:

i. On April 6, 2023 the Notice of Hearing was mailed to the applicant.

ii. On October 25, 2023 a reminder of the hearing, including the Zoom link, was mailed by courier to the applicant.

iii. I am also satisfied that the applicant did not request a change of hearing format on the basis of an alleged significant prejudice within the meaning of s. 6(5)(c) of the SPPA.

6Further, when the applicant did not appear at the videoconference hearing, the CMO attempted to phone the applicant. The CMO was unsuccessful in reaching him.

7Given this, I find that the applicant received sufficient notice of the hearing and chose not to attend.

8Consequently, the hearing proceeded in his absence. The parties received proper notice. The file is over 1198 days old. I found that proceeding with the hearing was an efficient and proportional resolution of this dispute.

ISSUES

9The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the applicant entitled to attendant care benefits of $6,000.00 per month from September 3, 2016 to date and ongoing?

iii. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

10The applicant did not provide any evidence to the Tribunal in support of his claim. As a result, he has not satisfied her burden to demonstrate entitlement to the benefits in dispute.

ANALYSIS

11The applicant failed to attend the hearing and failed to present evidence or make submissions. As it is the applicant’s burden to demonstrate entitlement to the benefits in dispute, 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. I find that the applicant is not entitled to any of the benefits claimed.

12In accordance with the case conference order, the applicant intended to dispute the denials of his catastrophic impairment determination and an attendant care benefit.

13In order to be deemed catastrophically impaired the applicant must demonstrated that he meets one of the 8 criteria enumerated in s. 3.1(1) of the Schedule. In order to be entitled to an attendant care benefit, in accordance with s. 19 of the Schedule, the applicant must demonstrate that expenses incurred as a result of attendant care services provided by an aide or attendant are reasonable and necessary.

14The respondent submits that the application should be dismissed because the applicant:

i. Did not attend the hearing despite receiving sufficient notice;

ii. Failed to submit a document brief despite receiving the Tribunal’s case conference report and order; and

iii. Failed to attend the hearing and submit evidence in support of his claims. Consequently, he has failed to meet his onus in support of the benefits in dispute. Since neither the applicant nor a representative appeared at the hearing, no submissions or evidence were tendered to prove why the benefits are reasonable and necessary.

15It is the applicant’s onus to prove his catastrophic impairment and entitlement to benefits. He has failed to provide any submissions or evidence on the issues in dispute. Therefore, he is not deemed catastrophically impaired and is not entitled to the attendant care benefit.

ORDER

16The applicant is not entitled to any of the benefits in dispute, as he failed to attend the hearing or present a case to support his application.

17The application is dismissed.