Citation and File Numbers

Citation: Khoshbakht v. TD General Insurance Company, 2024 ONLAT 23-014826/AABS-PI

Licence Appeal Tribunal File Number: 23-014826/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.

Parties

Between:

Shidvash Khoshbakht

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Sahereh Baghbani, Paralegal

For the Respondent:

Benjamin Hutchinson, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Shidvash Khoshbakht (“the applicant”) was involved in an incident on November 19, 2022 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010. The applicant was denied benefits by TD General 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

2According to the case conference report and order (“CCRO”) dated June 21, 2024, the preliminary issue to be decided is:

i. Is the applicant barred from proceeding with their claim for income replacement benefits claimed in this application because the applicant failed to submit an OCF-3 pursuant to s. 36(3) of the Schedule?

RESULT

3The very narrow issue before me has been withdrawn by the respondent. The applicant may proceed with their claim.

ANALYSIS

4In its submissions, the respondent withdrew the foregoing preliminary issue.

5The respondent goes on to indicate that the CCRO failed to include a second preliminary issue, namely, that the applicant failed to attend insurer’s examinations pursuant to section 44 of the Schedule. The entirety of the respondent’s submissions pertain to the alleged s. 44 non-compliance.

6I decline to consider those arguments given that the issue is not properly before me. The applicant has a right to receive notice of the issues in dispute. It would be procedurally unfair to the applicant to allow the respondent to add an issue in this manner. If the respondent wanted to add a further preliminary issue or request an amendment of the case conference report and order, it should have filed a notice of motion.

7The very narrow issue before me has been withdrawn by the respondent, therefore there is no preliminary issue before me to decide.

ORDER

8The applicant may proceed with their application before the Tribunal.