Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 130
FSCO A05-001230
BETWEEN:
CLAIRE-VANESSA BEAUGE
Applicant
and
BELAIR INSURANCE COMPANY INC.
Insurer
DECISION ON A MOTION
Before: Suesan Alves
Heard: By telephone conference call on May 8, 2006.
Appearances:
David Levy for Ms. Beauge
Michelle Mainprize for Belair Insurance Company Inc.
Issues:
The law firm of Mazin and Rooz brought a motion seeking to withdraw as Ms. Beauge's representative pursuant to Rules 9 and 65 of the Dispute Resolution Practice Code —Fourth Edition, Updated October 2003, ("the Code"). The Insurer opposed the motion.
The issue on this motion is:
- Is the law firm of Mazin and Rooz permitted to withdraw as Ms. Beauge's representative pursuant to Rules 9 and 65 of the "Code'?
Result:
- The law firm of Mazin and Rooz is not permitted to withdraw as Ms. Beauge's representative.
EVIDENCE AND ANALYSIS:
Background
The Applicant, Claire-Vanessa Beauge, was injured in a motor vehicle accident on July 12, 2004 and applied for arbitration at the Financial Services Commission of Ontario.
In January 2006, at a pre-hearing, both parties appeared by their representatives. Belair made a settlement offer which counsel for the Applicant was prepared to recommend. The parties agreed to suspend their obligations to obtain productions until February 18, 2006, pending instructions from Ms. Beauge. The arbitration hearing was scheduled for May 23 and 24, 2006 if the arbitration was not settled.
About a month before the hearing, Mazin and Rooz wrote the Commission seeking the removal of the firm as Ms. Beauge's representative on the basis that it had been unable to reach her to ascertain her instructions. A motion by teleconference call was scheduled for May 8, 2006.
I wrote Mazin and Rooz that they should provide a supporting Affidavit which detailed their efforts to contact the Applicant, and the Affidavit should be served on the client and on opposing counsel. In my letter to counsel, I noted that the Applicant's arbitration brief disclosed that at the time of the accident, Ms. Beauge was a student in a professional program at a community college and had two part-time employers. Following the accident, she had been treated by at least two health practitioners as a result of her injuries. It seemed unlikely that Ms. Beauge would be unreachable or that she would have simply vanished.
The Applicant was not the policyholder, according to the arbitration Application and Response. As this was a first-party claim, I also invited the Insurer to contact the policyholder to determine if he had a current address for the Applicant. The Insurer did so.
Law
Rules 9.7 and 9.8 of the Code state:
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.
In my view, because of the possible consequences for the client, representatives who seek removal on the basis that the client cannot be contacted, should provide an Affidavit which details the attempts to contact the client. In my view, on such motions, an adjudicator needs to be satisfied that the representative made timely but unsuccessful attempts to contact the client; not just last-minute, unsuccessful ones. The client may have no actual notice of the motion, and, as between the representative and the client, the arbitrator will only be hearing from the representative.
The consequences of making an Order removing a person's representative can be significant for the client. Once a hearing date has been scheduled and the applicant's representative is removed, the usual sequence of events is that the arbitration proceeds on an uncontested basis. The insurer attends on the date scheduled for the hearing and obtains a procedural dismissal of the arbitration and an expense order against the applicant. This is an appropriate outcome where the applicant has abandoned the proceedings. However, there have been cases where such an outcome would be inappropriate, for example cases in which the applicant has never had an interest in the arbitration and cases which have been commenced without the authority of the applicant.1
An applicant faced with payment of an expense order following a procedural dismissal may wish to question the basis of the Order removing his or her representative. Generally, the Commission does not provide court reporting services, so no transcript of the motion is available. An Affidavit detailing the representative's difficulties in contacting the client would also be helpful for that reason.
The motion
On the return of the motion Ms. Beauge's representative advised that while Affidavit material had been drafted for the motion, it had not as yet been sworn, and had not been served on the Insurer, or filed with the Commission. Ms. Beauge had not been served, and Ms. Beauge's representative proposed to proceed with two Affidavits of attempted service.
Although Ms. Beauge had not been served, I nevertheless attempted to reach her at the two telephone numbers provided to the Commission. Her representative advised that he believed that her phone was no longer in service. Although no person answered either number, both telephone numbers were in service and were answered by voice mail greetings.
Counsel for the Insurer opposed the motion, because the Applicant's representative had not served an Affidavit; the hearing date was looming; the Applicant's productions were outstanding and the Insurer had incurred costs.
Ms. Beauge's representative relied on two Affidavits of attempted service which set out attempts to deliver documents to Ms. Beauge at her apartment on April 25, 26, 27, 28 and 29, 2006. The process server deposed that on the last occasion, Ms. Beauge's apartment was empty and that he was informed that she was no longer at that address.
I take judicial notice of the recent province-wide strike involving instructors in community college programs, and that as a consequence, students in these programs were involved in make-up classes, had a longer school term and many found it necessary to make alternative arrangements for accommodation. I do not infer from the Affidavits of attempted service that Ms. Beauge has abandoned the arbitration.
While the Affidavits establish a series of attempts made shortly before the motion to serve Ms. Beauge, they do not establish attempts to contact her following the pre-hearing, to seek instructions.
I dismissed the motion orally because of the deficiency of the material, without prejudice to a further motion on better material. I adjourned the hearing dates to permit Mazin and Rooz to make further efforts to contact Ms. Beauge, and, if successful, to obtain productions and provide them to counsel for Belair.
EXPENSES:
I leave the expenses of this motion in the discretion of the hearing arbitrator.
July 31, 2006
Suesan Alves
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 130
FSCO A05-001230
BETWEEN:
CLAIRE-VANESSA BEAUGE
Applicant
and
BELAIR INSURANCE COMPANY INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mazin and Rooz is not permitted to withdraw as Ms. Beauge's representative. The dismissal is without prejudice to a further motion on better material.
The expenses of this motion are in the discretion of the hearing arbitrator.
July 31, 2006
Suesan Alves
Arbitrator
Date