Quang Vinh Tran v. Co-operators General Insurance Company, 2004 ONFSCDRS 11

Financial Services Commission of Ontario

Neutral Citation: 2004 ONFSCDRS 11

FSCO A00-000875

BETWEEN:

QUANG VINH TRAN Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Suesan Alves

Heard: December 8, 2003, at the offices of the Financial Services Commission of Ontario in Toronto in person and by teleconference call.

Appearances: Juan Carranza for Mr. Doan Ivan Luxenberg for Co-operators General Insurance Company Ms. Le, litigation guardian, was assisted by her brother Mr. Huynh Mr. Bich Pham translated the proceedings in English and in Vietnamese.

Issue and Result:

Mr. Kevin Doan, counsel for the Applicant, sought an Order removing him as counsel of record pursuant to Rule 9 of the Dispute Resolution Practice Code, based on an irreparable breakdown of the solicitor-client relationship.

The Applicant, Quang Vinh Tran, was injured in a motor vehicle accident on April 19, 1998. Mr. Tran's aunt, Ms. Dieu Kim Le, is his litigation guardian. Ms. Le opposed Mr. Doan's request.

Co-operators General Insurance Company ("Co-operators") did not oppose Mr. Doan's request. However, counsel for the Insurer submitted that if Mr. Doan were removed from the record, the litigation guardian should be allowed a period of time to retain new counsel, followed by the scheduling of a new date for the arbitration hearing.

I ruled orally that despite the imminent hearing dates, it was clear the solicitor-client relationship had broken down. I ordered Mr. Doan removed as counsel of record, and permitted him to withdraw. I vacated the hearing dates to allow Ms. Le to retain new counsel, and set a date to schedule new dates for the arbitration hearing.

The issue is:

1. Should Mr. Doan be permitted to withdraw as counsel of record in this arbitration?

Result:

1. Mr. Doan is permitted to withdraw as counsel of record for the Applicant due to a breakdown in the solicitor-client relationship. The hearing dates of December 15, 16, 17 and 18, 2003 are vacated. The matter will resume as a pre-hearing before me on January 27, 2004 at 2:00 p.m. via teleconference call to allow new counsel to attend and set a new hearing date for the arbitration. Until she retains counsel, Ms. Le's address for service is as set out in Mr. Doan's letter of December 2, 2003 which was made Exhibit 1 on the motion.

EVIDENCE AND ANALYSIS:

Rule 9 of the Dispute Resolution Practice Code provides that a party's representative may be removed in one of three ways — by the appearance of a new representative, with the client's written consent, or by order of an adjudicator.

Mr. Doan proposed to proceed by submissions. However, in my view, where the request for removal is contested, parties should be in a position to provide evidence to the adjudicator, either viva voce, in Affidavit form, or by some combination of the two. Mr. Doan then arranged for Mr. Carranza to act as counsel while he gave evidence.

On this motion, Mr. Doan sought an order removing him as counsel of record based on an irreparable breakdown in the solicitor-client relationship. He alleged that the relationship had been a difficult one throughout. However, more recently significant mistrust had developed. His client refused to accept his opinion as to the evidence and the applicable law, and had acted contrary to his advice.

Ms. Le, the litigation guardian, opposed Mr. Doan's request. She disputed that there were difficulties between counsel and client. In addition, she submitted that since the hearing was only a week away, Mr. Doan's withdrawal at this stage would be unfair to her, her nephew, and her brother.

Although the motion had been scheduled for a face-to-face hearing, Ms. Le, the litigation guardian, and her brother, Mr. Hoang Minh Huynh, chose to participate from Mr. Doan's office via teleconference call. When asked why this was, Mr. Huynh stated that he was concerned about his English speaking skills, that he and Ms. Le were unsure of the process and the possible outcome. They were also concerned about collusion and that "there were too many people against" them.

Since the arbitration hearing was scheduled to commence in a week from the date of the motion, the motion proceeded with Mr. Doan giving evidence in person, while Mr. Huynh, the uncle of the Applicant and brother of the litigation guardian, gave evidence by teleconference from Mr. Carranza's office. Ms. Le and Mr. Carranza also participated by teleconference. Mr. Luxenberg appeared in person. Mr. Luxenberg excused himself for a portion of the evidence which detailed the mistrust which had developed and the ongoing difficulties leading to the breakdown of the solicitor-client relationship.

Mr. Doan's evidence

Mr. Doan testified about the difficulties in the solicitor-client relationship throughout the file. Ms. Le is the litigation guardian who instructs counsel in the prosecution of this arbitration and is responsible for expenses. However, it would appear that both Ms. Le and her brother Mr. Huynh instruct Mr. Doan. Mr. Doan testified that more recently, his client refused to accept his view of the evidence, of the applicable law, and acted contrary to his advice. These factors and others caused him to conclude that there had been a complete and irreparable breakdown in the solicitor-client relationship.

Mr. Doan testified that in the initial period following the accident, two or three other law firms had been retained for varying periods of time. About 20 months following the accident, Mr. Doan's firm had been retained. During the period of his retainer, the litigation guardian was sufficiently mistrustful of the steps his firm was taking on her nephew's behalf, that she retained another law to firm to conduct a "strict review" of Mr. Doan's file. After the review, Ms. Le wished that law firm to assume carriage of the file; however, that firm refused to take the case.

Mr. Doan testified that he has explained fundamental points of the applicable law "in plain Vietnamese," yet his client returns to her own view of the law. At this point, his client is no longer prepared to accept his opinion in relation to even simple points of law.

Mr. Doan testified that in the last month, Mr. Huynh submitted certain documents directly to the Insurer, despite Mr. Doan's advice to Mr. Huynh that he not do so. Mr. Huynh also did not inform Mr. Doan of his actions.

Mr. Doan testified that at this juncture, he had no confidence the solicitor-client relationship could be repaired to the degree necessary to permit him to continue to represent Mr. Tran. Mr. Doan testified that the Applicant's case is ready for the hearing. In his opinion, all the Applicant's productions had been obtained and undertakings fulfilled. The Applicant's expert reports and all documents on which the Applicant intends to rely at the hearing have been served. Mr. Doan testified that moving to get off the record was an unusual step for him, and one which he took with great reluctance. Mr. Doan testified that there were additional factors about which he could testify, however, he was concerned that such information would breach solicitor-client privilege.

The litigation guardian's evidence

Mr. Huynh dismissed Mr. Doan's testimony as untrue. Mr. Huynh testified that there was no difficulty between him, his sister and Mr. Doan. In Mr. Huynh's mind the difficulty arose following Ms. Le's rejection of an offer of settlement, which Mr. Doan had apparently recommended. Mr. Huynh noted that his sister had a right to reject the offer, and this was not a valid reason for Mr. Doan to withdraw.

In cross-examination, Mr. Huynh was asked if he trusted Mr. Doan. Mr. Huynh replied: "It is difficult for me to say. If I say I don't trust him, it will help Mr. Doan in his withdrawal, so it is difficult to say no. ... But before, I did trust Mr. Doan."

Mr. Huynh suggested that Mr. Doan had been paid off by the Insurer, and testified that he intended to commence court proceedings against Mr. Doan.

Mr. Huynh illustrated just how difficult and strained the relationship between counsel and client had become during cross-examination. Mr. Huynh provided detail of the conflicts between his own view of the facts of the case and Mr. Doan's view of what could be established in evidence. Mr. Huynh also gave two examples of the conflict between his interpretation of the meaning of two provisions of the Schedule which are germane to the issues in the arbitration, and Mr. Doan's opinion of the applicable law. Mr. Huynh testified he was not prepared to accept Mr. Doan's assessment of the evidence or his interpretation of the law.

When Ms. Le was asked whether she wished to give evidence, she indicated that her brother, Mr. Huynh, spoke for her.

I was persuaded by the testimony of Mr. Doan and of Mr. Huynh that there has been a complete breakdown in the solicitor-client relationship. In particular, I find significant mistrust has developed, and Ms. Le and Mr. Huynh no longer accept that Mr. Doan is acting in their interest or in that of their nephew.

Ordinarily, an arbitrator would be loathe to permit counsel to withdraw on the eve of an arbitration hearing. I disagree with Mr. Huynh's assessment that this is merely a question of a difference of opinion between counsel and his client in relation to a settlement, in which the client can instruct counsel to proceed with the hearing. I concluded that given the allegations of Ms. Le and Mr. Huynh, the nature and extent of the mistrust and of the disagreements between counsel and client, it would be untenable in the circumstances of this case for Mr. Doan to continue as counsel. For these reasons, I granted Mr. Doan's request to be removed as counsel of record in these proceedings, and permitted him to withdraw.

My sense is that the primary reason Ms. Le and Mr. Huynh opposed Mr. Doan's withdrawal is the imminent hearing date. Understandably, they do not want to have the hearing without counsel. I vacated the hearing dates of December 15, 16, 17 and 18, 2003, and have given Ms. Le a period of approximately 45 days to retain new counsel. Mr. Huynh has undertaken that he and his sister will do their best to ensure that counsel is retained within that time frame. The matter will resume as a pre-hearing on January 27, 2004 at 2:00 p.m. via teleconference call, arranged by the Financial Services Commission of Ontario.

During the motion I indicated that another arbitrator would preside on January 27, 2004. Instead, I will deal with the resumption. At that time I expect the parties to be ready to set a new hearing date for the arbitration. Until Ms. Le retains counsel, her address for service will be the one provided in Mr. Doan's letter of December 2, 2003, which was made Exhibit 1 in these proceedings.

January 19, 2004

Suesan Alves Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Doan is removed as counsel of record for the Applicant.

2. The hearing dates of December 15, 16, 17 and 18, 2003 are vacated. The matter will resume before me as a pre-hearing on January 27, 2004 at 2:00 p.m. via teleconference call to allow new counsel to be retained, attend and set a new hearing date for the arbitration.

3. Until Ms. Le retains new counsel, Ms. Le's address for service will be the one set out in Mr. Doan's letter of December 2, 2003 which was made Exhibit 1 on the motion.

January 19, 2004

Suesan Alves Arbitrator