Neutral Citation: 2002 ONFSCDRS 173

FSCO A02-000642

BETWEEN:

SHERIDON F. FORBES

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A MOTION

Before:

Tanja Wacyk

Heard:

By telephone conference call on October 11, 2002.

Appearances:

Roy Tofilovski for himself

Jeffrey A. Gauze for TTC Insurance Company Limited

Issues:

The Applicant, Sheridon F. Forbes, was injured in a motor vehicle accident on March 31, 2000. A dispute arose regarding his entitlement to statutory accident benefits from TTC Insurance Company Limited ("TTC"), payable under the Schedule.¹ The parties were unable to resolve their dispute through mediation, and Mr. Forbes applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Tofilovski, Counsel for the Applicant brought a motion to be permitted to withdraw from the record.

The preliminary issue is:

Is Mr. Roy Tofilovski permitted to withdraw as Counsel on record for the Applicant in this arbitration?
Is TTC entitled to an order dismissing Mr. Forbes's Application for arbitration?
Is Mr. Forbes liable to pay an amount to TTC that does not exceed the amount assessed against TTC in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act, because he commenced an arbitration that is frivolous, vexatious or an abuse of process?

Result:

Mr. Tofilovski is permitted to withdraw as Counsel on record for Mr. Forbes in this arbitration.
TTC's motion that the Application be dismissed and Mr. Forbes ordered to pay it $3,000 is premature.

PRELIMINARY MATTER:

Notice of this hearing was sent to the Applicant by the Commission via courier and regular mail. The notice of motion stated:

This hearing of a motion will determine whether Mr. Roy Tofilovski, is permitted to withdraw as counsel on record for the Applicant in this arbitration.

Mr. Tofilovski indicated that the notice had been forwarded to him. However, it was not clear how this occurred or whether he received both copies of the notice.

Prior to the beginning the hearing of the motion, I called Mr. Forbes at his last known telephone number in order to provide an opportunity for him to participate. However, his phone appeared to be turned off.

I was satisfied that reasonable notice had been given to Mr. Forbes regarding this matter and the hearing proceeded without him.

EVIDENCE:

The following facts were not in dispute.

Mr. Forbes's Application for Arbitration was received by the Commission on April 25, 2002.

Mr. Tofilovski, Mr. Forbes's Counsel, communicated with the Commission by letter dated July 25, 2002, and copied to Mr. Forbes and Mr. Gauze, Counsel for TTC.

In the letter, Mr. Tofilovski indicated that Mr. Forbes had not been granted legal aid funding for the arbitration. Mr. Tofilovski also indicated that the solicitor-client relationship had broken down between them, and asked that he be allowed to withdraw as Mr. Forbes's representative. Mr. Tofilovski also provided Mr. Forbes's last known address and telephone number.

The letter also set out Mr. Tofilovski's efforts to contact Mr. Forbes which were reiterated at the hearing as follows.

Mr. Tofilovski called Mr. Forbes at the number he had provided, on July 17, 18, 19, 2002, with no success.

Mr. Tofilovski then sent a letter to Mr. Forbes, dated July 19, 2002, indicating he had been attempting to contact him by telephone without success. The letter indicated that Mr. Tofilovski needed to speak to Mr. Forbes and asked that he either attend at his office on Thursday, July 25, 2002 at 11 a.m. or call to arrange for another time.

Mr. Forbes neither attended at Mr. Tofilovski's office nor called him any time since the letter was sent to him. Mr. Tofilovski again attempted to call Mr. Forbes on July 25, 2002, with no success.

Mr. Gauze, Counsel for the TTC, responded by letter dated August 1, 2002. Mr. Gauze indicated that the TTC did not oppose Mr. Tofilovski's request. However, he requested that the matter be dismissed and that the Insurer's filing fee be refunded.

At the hearing, Mr. Gauze reiterated that TTC does not oppose Mr. Tofilovski's motion. However, TTC also asked that the matter be dismissed as frivolous and vexatious, and that Mr. Forbes be required to pay TTC $3,000, the equivalent of the amount assessed against TTC in respect of the arbitration.

ANALYSIS:

Withdrawal of Mr. Tofilovski from the Record

Rule 9.7 of the Dispute Resolution Practice Code² requires a representative seeking to withdraw from a proceeding to provide a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding. In addition, the representative must provide the last known address, telephone number, and electronic transmission address (if any) of the represented party. I find Mr. Tofilovski has satisfied those requirements and he will be permitted to withdraw as Counsel on record for the Applicant in this arbitration.

Dismissal of the Application without a hearing because the proceeding is frivolous, vexatious, or commenced in bad faith

Sections 67.2 and 67.3 of the Dispute Resolution Practice Code require that a party requesting an order prior to the hearing put the request in writing, describe the order being sought, as well as the grounds for the order. In addition, the time, date, and manner in which the party seeks to have the motion heard must also be set out. This material must then be served on the parties and filed with the Commission.

The only notice sent to Mr. Forbes was regarding the motion brought by Mr. Tofilovski. There has been no notice of TTC's motion that the matter be dismissed and Mr. Forbes ordered to pay TTC $3,000. Nor does it appear reasonable measures were undertaken to provide such notice.

While Mr. Forbes did not respond in this instance, that does not necessarily lead to the conclusion he would not respond to a motion such as that brought by TTC.

In any event, I find the failure to give Mr. Forbes notice results in my being unable to entertain TTC's motion at this time.

October 31, 2002

Tanja Wacyk Arbitrator

Date