Neutral Citation: 2001 ONFSCDRS 118

FSCO A01-000300

BETWEEN:

TAI TRUONG

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: William J. Renahan

Heard: June 13, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David Carranza, representative for Mr. Truong Lora Castellucci, Barrister and Solicitor for Zurich Insurance Company

Issues:

The Applicant, Tai Truong, was injured in a motor vehicle accident on December 2, 1999. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Mr. Truong applied to Zurich for physiotherapy expenses provided by Dundas Physical Rehab Clinic in the amount of $1,890 pursuant to section 14 of the Schedule and for the cost of a functional abilities evaluation performed by Financial Treatment Centre (FTC) in the amount of $1,200.54. Zurich refused to pay. The parties were unable to resolve their disputes through mediation, and Mr. Truong applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Turong did not appear at the pre-hearing meeting on June 13, 2001. His representative, David Carranza, asked for permission to withdraw from the proceeding. Zurich asked that the application be dismissed on the grounds that it was frivolous, vexatious or commenced in bad faith. I convened this preliminary hearing to deal with these issues.

The preliminary issues are:

May David Carranza withdraw as Mr. Truong's representative, and if so, upon what terms?
Should Mr. Truong's application for arbitration be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code (Fourth Edition) on the grounds that the proceeding is frivolous, vexatious or commenced in bad faith?
If the application for arbitration is dismissed, what terms, if any, should be imposed?

Result:

David Carranza may withdraw as representative.
The application for arbitration is dismissed.
Tai Truong shall pay Zurich expenses of the arbitration proceeding fixed at $50.

EVIDENCE AND ANALYSIS:

Permission to withdraw:

The procedure for a representative who seeks to withdraw is set out in Rule 9.7 of the Dispute Resolution Practice Code (4^th Edition) as follows:

9.7 A representative who seeks to withdraw from a proceeding must:

(a) provide a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding;

(b) provide the last known address, telephone number and electronic transmission address (if any) of the represented party.

9.8 Where the party represented provides written consent to the representative's request for withdrawal, the Registrar or an adjudicator shall permit the representative's withdrawal. Otherwise, an adjudicator may permit the representative to withdraw, subject to such terms as the adjudicator considers just.

Before the scheduled pre-hearing, Mr. Carranza advised the Commission and Mr. Truong in writing that he no longer represented Mr. Truong. He did not advise Zurich or disclose the reason for his request for permission to withdraw. Mr. Truong replied in writing that he did not consent to Mr. Carranza's withdrawal.

Mr. Carranza describes himself as a law clerk. He is a representative and I see no reason why he should not comply with the same criteria as a lawyer who seeks to withdraw.

In Legal Ethics and Professional Responsibility (1999)², Professor Allan C. Hutchinson comments on the circumstances where lawyers are allowed to withdraw their services. As well as those circumstances where lawyers are obliged to withdraw, such as where the client wants them to engage in prohibited conduct, where they learn that a conflict of interest has occurred, or where they realize they are no longer competent to handle the matter, a lawyer may withdraw in restricted circumstances. Professor Hutchinson describes them as follows:

However, as a general matter, lawyers can withdraw only where there are compelling and justifiable reasons to do so. While clients have a clear right to dismiss their lawyers as and when they wish (provided they settle their outstanding account), lawyers do not have an equivalent right to withdraw their services arbitrarily from their clients. For lawyers to choose to withdraw, there must have been "a serious loss of confidence between lawyer and client" such as the clients' persistent failure to follow the lawyers' advice, to provide necessary instructions, and, most important, to pay their bill after a reasonable time. In effecting withdrawal, lawyers must take all reasonable steps to protect the clients' interests, especially if the case is at a particularly crucial phase in the action or dealing, and to deliver all documents, papers, and property to their clients or the successor lawyer. Nevertheless, lawyers do have a lien over such papers and property until their fees are paid .

Mr. Carranza claimed that Mr. Truong has not provided him with the information he requested and has not cooperated. Mr. Truong claimed that he did not understand what Mr. Carranza meant by lack of cooperation. Mr. Carranza did not provide particulars and was not clear as to how Mr. Truong failed to cooperate. If lack of cooperation was the only grounds for the request for permission to withdraw, I might not allow Mr. Carranza to withdraw.

However, Mr. Truong claimed that he could not afford the $500 Mr. Carranza asked as a retainer. Failure to pay a bill is a sufficient reason to allow a representative to withdraw. I therefore permit Mr. Carranza to withdraw as representative due to Mr. Truong's failure to pay his bill.

Dismissal of application:

Mr. Truong said that he had "no clue" as to what was going on and that he did not know what he was arbitrating. The issues involve approximately $3,000 for the accounts of two service providers. Mr. Truong said that he would agree to the dismissal of his application for arbitration if Zurich did not ask for more than $50 for its disbursements. Ms. Castelluci agreed to this amount.

I find this a reasonable resolution and dismiss the application for arbitration. Mr. Truong shall pay Zurich expenses of the arbitration fixed at $50.

August 13, 2001

William J. Renahan Arbitrator

Date