Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 145
FSCO A04-002573
BETWEEN:
ARSHAD NAWAZ
Applicant
and
WESTERN ASSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before:
Richard Feldman
Heard:
By telephone conference call on October 14, 2005. Written submissions were received on October 3, 5, 11 and 13, 2005.
Appearances:
David Gill Mr. Arshad Nawaz Christopher J. Schnarr for Western Assurance Company
Issues:
The Applicant, Arshad Nawaz, was injured in a motor vehicle accident on November 26, 2001. He applied for and received statutory accident benefits from Western Assurance Company ("Western"), payable under the Schedule.1 Western terminated weekly income replacement benefits on November 28, 2002. The parties were unable to resolve their disputes through mediation, and Mr. Nawaz applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
On October 3, 2005, Mr. Gill requested a resumption of the pre-hearing conference in order to bring a motion to be removed from the record as the representative for Mr. Nawaz (pursuant to Rule 9.7 of the Commission's Dispute Resolution Practice Code, 4th Edition, Updated October 2003). By way of telephone conference on October 3, 2005 at 2:00 p.m., I heard submissions from Mr. Gill and Mr. Schnarr on this issue. The motion was adjourned to October 14, 2005 to permit proper service by Mr. Gill of written notice of the motion upon Mr. Nawaz, so that Mr. Nawaz could participate in the motion.
On October 14, 2005, I heard submissions from Mr. Gill and Mr. Nawaz concerning the motion brought by Mr. Gill and I considered the documents filed by Mr. Gill and Mr. Nawaz. Mr. Schnarr renewed the Insurer's request for an adjournment of the hearing based upon the fact that most, if not all, of the undertakings for production of documents remain unfulfilled.
Based upon the submissions received on October 14, 2005, it is clear that there has been a complete breakdown in the relationship between Mr. Nawaz and his representatives. Because of this breakdown and because the Applicant has not provided to Western the documents (or authorizations that would permit Western to obtain the documents) to which it is entitled, all parties agreed that the hearing could not commence on October 24, 2005, as scheduled.
Mr. Gill has undertaken to co-operate in the transfer of Mr. Gill's file to any new representative retained by Mr. Nawaz and has agreed not to exercise a lien on the file for legal fees and only to request that the new representative undertake to protect the outstanding disbursements incurred by Pace Law Firm with respect to this matter (approximately $800.00).
Mr. Nawaz states that he has lost confidence in Mr. Gill and his firm. Mr. Nawaz does not oppose a brief adjournment of the hearing so that he can obtain new representation and ensure that signed authorizations are delivered to Mr. Schnarr so that all outstanding undertakings are fulfilled. Mr. Nawaz has agreed to try to find new representation and to sign (and deliver to Mr. Schnarr) the necessary authorization forms by October 24, 2005 and to attend before the Commission on that date to participate in choosing new dates for the hearing of his application. Mr. Nawaz has been cautioned that if he does not have a new representative at that time, hearing dates may be set that are peremptory upon him and that any new representative would then have to make himself or herself available on said peremptory dates.
Based upon the foregoing, and pursuant to Rule 67 of the Dispute Resolution Practice Code, I have decided to grant Mr. Gill's motion, upon certain terms.
October 14, 2005
Richard Feldman Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 145
FSCO A04-002573
BETWEEN:
ARSHAD NAWAZ
Applicant
and
WESTERN ASSURANCE COMPANY
Insurer
ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended and section 16.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, it is ordered that:
Based upon the undertakings given by David Gill to co-operate in the transfer of the file to any new representative retained by Mr. Nawaz, David Gill and Pace Law Firm are hereby removed from the record as representatives for Mr. Nawaz.
Mr. Schnarr (on behalf of Western), Mr. Nawaz and the new representative of Mr. Nawaz (if any) shall attend before the Commission on October 24, 2005 at 10:00 a.m. for the purpose of ensuring that Mr. Nawaz has complied with his undertakings, to choose dates for the hearing of this application on its merits and to deal with any other matters the hearing arbitrator deems appropriate. The hearing of the substantive issues raised in this application scheduled for October 24, 25, 26 and 27, 2005 is adjourned to dates to be set by the Commission on October 24, 2005.
October 14, 2005
Richard Feldman Arbitrator
Date