Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 159

FSCO A06-000202

BETWEEN:

KWAKU ADDAE

Applicant

and

KRYLOV & COMPANY

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before:

Elizabeth Nastasi

Heard:

By telephone conference call on September 6, 2006

Appearances:

Ms Deborah Starkman, Student-at-Law for Mr. Michael Krylov, Krylov & Company

Mr. Kwaku Addae for himself

Ms Joyce Donson, Twi Interpreter

Ms Joan Takahashi for Dominion of Canada General Insurance Company

Issues:

The Applicant, Mr. Kwaku Addae, was injured in a motor vehicle accident on May 4, 2004. He applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Addae applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion took place on May 15, 2006. A preliminary issue hearing is scheduled for November 1 and 2, 2006. The arbitration hearing is scheduled for February 19, 20, 21 and 22, 2007. During the pre-hearing, a production dispute arose and written submissions were to be provided by the parties no later than September 15, 2006. Prior to this motion hearing, the parties agreed to adjourn the due date for those submissions without prejudice pending the outcome of this motion.

Mr. Krylov brought a motion seeking to withdraw as Mr. Addae's representative. Both Mr. Addae and Dominion opposed the request and made submissions at the motion.

The issues in this motion hearing is:

Is Mr. Krylov permitted to withdraw as Mr. Addae's representative pursuant to Rule 9.8 of the Dispute Resolution Practice Code (Fourth Edition, Updated October 2003) (the "Practice Code")?
Is Dominion entitled to details related to the breakdown in the solicitor-client relationship claimed by Mr. Krylov?
Is Dominion entitled to their costs of the motion to be paid personally by Mr. Krylov?
Is Krylov & Company entitled to their costs of the motion?

Result:

Mr. Krylov is permitted to withdraw as Mr. Addae's representative pursuant to Rule 9.8 of the Practice Code.
Dominion is not entitled to details related to the breakdown in the solicitor-client relationship between Mr. Krylov and Mr. Addae.
Dominion is not entitled to its costs of this motion.
Krylov & Company is not entitled to its costs of the motion.

EVIDENCE:

Ms Starkman, on behalf of her principal Mr. Krylov, submitted that her request to be removed from the record pursuant to Rule 9.8 of the Practice Code, is based on a breakdown in the solicitor-client relationship. Ms Starkman would not provide any details of the breakdown citing privilege and possible prejudice to Mr. Addae. In support of the motion to withdraw, Ms Starkman served and filed her Notice of Motion and Motion Record including an affidavit by Ms Francesca Federici, Mr. Krylov's assistant.

Mr. Addae denied any knowledge of a "breakdown" in the relationship between himself and his representative. Ms Starkman declined to speak with Mr. Addae privately and indicated that she had "no instructions" to do so. She also noted that she had no additional information other than what was provided in the motion materials. Ms Starkman had been advised by her principal, Mr. Krylov, that there was a breakdown in the solicitor-client relationship but was not given any specific details. Mr. Krylov was on vacation and therefore could not be reached to provide any clarification.

Ms Starkman further submitted that her office had made several attempts to contact Mr. Addae and that his lack of response indicated he "did not want to be reached." The Notices of Hearings sent to Mr. Addae's current address on file with this Commission were returned by Canada Post

marked "return to sender." Ms Federici's affidavit states that telephone messages were left for Mr. Addae on June 13^th, June 15^th, June 17^th and August 21^st, 2006. Mr. Addae did respond to the June 15^th message but left an incomplete phone number in his voice mail reply. Mr. Krylov had not received any communication from Mr. Addae since that date.

Mr. Addae opposed the withdrawal of Mr. Krylov as his legal representative on the basis that he could not afford to hire another lawyer. He submitted that he did not return the calls because he had started a new job and would not be able to go to his lawyer's office. He did not know why the Notices of Hearings were returned and confirmed that the address listed was correct.

Ms Takahashi, on behalf of Dominion, also opposed the withdrawal of Mr. Krylov. Ms Takahashi noted that none of Ms Starkman's initial correspondence referred specifically to a breakdown in the solicitor-client relationship but instead referred only to their inability to locate and obtain instructions from Mr. Addae. Ms Takahashi's position was that Mr. Krylov had made insufficient efforts to locate Mr. Addae and did not provide sufficient details with respect to their efforts and contact information. Ms Takahashi requested an order that Mr. Krylov be required to provide her with all contact information in their file including any alternate contact and employment information that may exist. This request became moot at the hearing as prior to the motion the FSCO case administrator was able to contact Mr. Addae and confirm that both his address and phone number had remained the same. Ms Takahashi was in possession of this information.

Ms Starkman made a distinction between a breakdown in the solicitor-client relationship and solicitor-client communication. She indicated that there had been a breakdown in both, however, it was the former that first led Mr. Krylov to seek to be removed as the solicitor of record. This is evidenced by the fact that the request to withdraw as counsel has been maintained despite now having confirmed Mr. Addae's contact information is correct.

Ms Takahashi also sought an order for the particulars of the breakdown in the solicitor-client relationship claimed by Mr. Krylov as a condition of their removal as solicitor of record. Ms Starkman refused to provide any additional details on the basis of solicitor-client privilege. Ms Takahashi submitted that the Insurer may be prejudiced by not being able to obtain this information as it may be relevant to the case.

Rule 9.8 of the Practice Code states:

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

ANALYSIS:

I accept Ms Starkman's submission that there has been a breakdown in the solicitor-client relationship. I also accept that the difficulty they have encountered in communicating with Mr. Addae is one example of this breakdown but not the sole reason for their request.

I also referred to Rule 2.09(1) of the New Rules of Professional Conduct (September 2000) (the "New Rules") which states that "[a] lawyer shall not withdraw from representation of a client except for good cause and upon notice of the client appropriate in the circumstances."

"The Commentary" on the Rule states:

Although the client has the right to terminate the lawyer-client relationship at will, the lawyer does not enjoy the same freedom of action. Having undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is a justifiable cause for terminating the relationship.

I further noted Rule 2.09(8) of the New Rules, provides that when a lawyer withdraws, the lawyer should try to minimize expense and avoid prejudice to the client and shall do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor lawyer.

In this case, it may be necessary to resume the pre-hearing in order to deal with the outstanding production issues and possibly reschedule the preliminary issue hearing scheduled for November 1 and 2, 2006.

With respect to Ms Takahashi's request for the particulars of the solicitor-client breakdown, I find that such an order could be highly prejudicial to Mr. Addae and not necessarily relevant to the issue of this motion. The Insurer has other means of obtaining information to assist them in the assessment of the merits of Mr. Addae's case that are far less intrusive than a potential breach of solicitor-client privilege. As such, I decline to make such an order.

EXPENSES:

Both counsel sought an order for expenses in this motion.

Upon consideration of their respective submissions, I find that the parties shall bear their own expenses of the motion.

October 3, 2006

Elizabeth Nastasi Arbitrator

Date