Citation: Adan v. Belair, 2024 ONLAT 21-010040/AABS

Licence Appeal Tribunal File Number: 21-010040/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:

Sadik Adan

Applicant

and

Belair

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

No Submissions Filed

For the Respondent:

Christine Anne Haddad, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sadik Adan (the “applicant”) was involved in an automobile accident on October 8, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Belair (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

2The issues in dispute are:

1. 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 (“MIG”) limit?

2. Is the applicant entitled to $2,614.11 for chiropractic treatment, proposed by Medilife Care in a treatment plan/OCF-18 that was denied on May 17, 2021?

3. Is the applicant entitled to $2,731.61 for chiropractic treatment, proposed by Humber Care Civic in a treatment plan/OCF-18 that was denied on March 17, 2020?

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

RESULT

3The application is dismissed. As the applicant has failed to make 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 One 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 (“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.

6The applicant and his legal counsel attended a case conference held regarding this application on November 8, 2022. This case conference resulted in a Case Conference Report and Order (“CCRO”) released on January 17, 2023 that established a timeline for productions. Initial productions were to be exchanged no later than 60 days from the case conference. Additional items were to be exchanged no later than 90 days from the case conference. Lastly, documents responsive to items already produced were to be exchanged 120 days from the case conference.

7This CCRO also set deadlines for hearing submissions. The order established that the applicant was to file his written submissions and evidence 30 calendar days before the hearing date; the respondent was to file its submissions and evidence 14 calendar days before the hearing; and the applicant was to file reply submissions seven calendar days before the hearing.

8On February 2, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for September 29, 2023. As a result of the CCRO and the NoWH, the applicant’s written submissions were due on August 30, 2023 and the respondent’s written submissions were due on September 15, 2023. The applicant’s reply submissions, if any, were due on September 22, 2023.

9The 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 were not filed.

10A representative of the law firm that had represented the applicant in the case conference held in this matter advised the Tribunal and the respondent by email on March 21, 2023 that it was no longer representing the applicant. It was also noted that the applicant had been made aware of this loss of representation.

11As the applicant did not have an email address, the Tribunal called the applicant on March 23, 2023 and twice on April 12, 2023 to ask about the status of this application. These calls were not answered and messages left were not returned. The Tribunal then mailed correspondence to the applicant’s home address on April 14, 2023 making the same inquiry regarding this application. No response to this correspondence is noted in Tribunal records.

12The applicant failed to file hearing submissions and evidence in accordance with the timeline established by the CCRO and the NoWH.

13There is no indication that the applicant has been in contact with the Tribunal at any time since the case conference that was held with regard to this matter on November 8, 2022. As noted above and according to Tribunal records, a number of phone calls, phone messages, and a letter were not acknowledged by the applicant.

14There is also no indication that the applicant’s contact information changed or was otherwise incorrect in Tribunal records. If the applicant’s address differed from what was provided to the Tribunal, he had an obligation under Rule 4.4 of this Tribunal’s Rules to provide the correct address.

15In hearing submissions filed by the respondent on September 14, 2023, the respondent claims to have spoken to the applicant on the phone on August 4, 2023. The respondent notes that the applicant stated that he did not want to proceed with this application. Following this conversation, the respondent claims to have sent an email to the applicant summarizing their discussion and including a Notice of Withdrawal form for him to sign and send to the Tribunal. The respondent asserts that there was no response to this email, nor to follow-up emails sent to the applicant on August 11, 18, and 28, 2023.

16Given the multiple attempts made by the Tribunal to contact the applicant that were disregarded and the respondent’s account of its interactions with the applicant (which I accept in the absence of any submissions to the contrary), I am satisfied that the applicant received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.

17As a result, 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 to demonstrate regarding the MIG determination and the claimed benefits.

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 failed to meet this onus as he did not file written submissions or evidence 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 subsequent three months since the hearing date of September 29, 2023, nor did he contact the Tribunal regarding this matter during this period of time.

21As noted above, the respondent filed its submissions and evidence on September 14, 2023 in accordance with the timeline established in the CCRO and NoWH. In these submissions, the respondent detailed the procedural history of this application and requested that it be dismissed as abandoned.

22Aside from the August 4, 2023 phone call with respondent’s counsel, the applicant seems to have gone silent on this application since his counsel withdrew some nine months before the time of this writing. While I am prepared to allow some latitude for an applicant to attend to the loss of counsel or prepare for self-representation, this extreme length of time without contact demonstrates that the applicant has no intention of proceeding with his application.

23For the above reasons, it is clear that the applicant cannot meet his burden in the absence of his submissions and evidence. This application is 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.