Neutral Citation: 2007 ONFSCDRS 187 FSCO A06-000706

BETWEEN:

NATISHA LYNSIA RYNER Applicant

and

ZURICH INSURANCE COMPANY (COMMERCIAL BUSINESS) Insurer

DECISION ON A MOTION

Before: Anne Sone Heard: June 15, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David Levy for Mrs. Ryner Murleen Grant for Zurich Insurance Company (Commercial Business)

Issues:

The Applicant, Natisha Lynsia Ryner, was injured in a motor vehicle accident on May 14, 2005. She applied for and received statutory accident benefits from Zurich Insurance Company (Commercial Business) (“Zurich”), payable under the Schedule.¹ Zurich terminated weekly caregiver and housekeeping and home maintenance benefits on June 12, 2005. It submits that the chiropractic treatment and related expenses that Ms. Ryner is claiming are not reasonable and necessary. The parties were unable to resolve their disputes through mediation, and Mrs. Ryner applied for arbitration on March 22, 2006 at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On June 15, 2007, Mazin Rooz Mazin brought a motion seeking that they be removed as solicitors of record for the Applicant, Natisha Lynsia Ryner. On that day, I orally permitted Mazin Rooz Mazin to withdraw as representatives for Natisha Lynsia Ryner with written reasons to follow.

The issue is:

Should Mazin Rooz Mazin be permitted to withdraw as the representatives for Natisha Lynsia Ryner in this proceeding?

Result:

Mazin Rooz Mazin are permitted to withdraw as the representatives for Natisha Lynsia Ryner in this proceeding.

EVIDENCE AND ANALYSIS:

Background:

A pre-hearing in this matter was scheduled for November 22, 2006 at 10:00 a.m. at the Financial Services Commission of Ontario. The Commission sent a Notice of Pre-Hearing Discussion, dated July 6, 2006, to Natisha Ryner at her last known address. Her solicitors, Mazin Rooz Mazin sent a letter dated October 30, 2006 to her last known address, advising her that she was required to attend a pre-hearing before the Commission on November 22, 2006 at 10:00 a.m.

Ms. Ryner did not attend the pre-hearing held on November 22, 2006, as confirmed in my pre-hearing letter of December 6, 2006. At this initial pre-hearing discussion, I dealt with the administrative issues and scheduled a resumption of pre-hearing for June 1, 2007, at 10:00 a.m. at the Commission. My notes also indicate that the Case Administrator was asked to confirm that the Commission had Ms. Ryner’s correct address and that her counsel advised that he has not been able to reach her by telephone as her line is no longer in service.

The Commission sent the Applicant a Notice of Resumption of Pre-Hearing Discussion dated November 28, 2006 indicating that the pre-hearing discussion would be resumed on June 1, 2007, at 2:00 p.m. at the Commission.

In a letter dated November 22, 2006 to the Applicant at her last known address, Mazin Rooz Mazin confirmed Ms. Ryner’s non-attendance at the pre-hearing on November 22, 2006 and that the matter was scheduled to resume on June 1, 2007, at 2:00 p.m. at the Commission. The firm stressed that it was important that she be present to participate in the resumed pre-hearing. She was also asked to contact her counsel and provide her instructions prior to the resumed pre-hearing. Mazin Rooz Mazin sent two further letters dated March 12, 2007 and May 15, 2007 to Ms. Ryner’s last known address reminding her of the Resumption of the Pre-Hearing and the requirement for her to attend.

Despite several notices sent to her last known address, Ms. Ryner failed to attend the Resumption of Pre-Hearing held on June 1, 2007. My letter of June 1, 2007 sent to her and the other participants confirms this and advised Ms. Ryner as follows:

The resumption of pre-hearing is scheduled for July 27, 2007, at 2:00 p.m., at the offices of the Financial Services Commission of Ontario. I am putting Mrs. Ryner on notice that if she fails to attend this pre-hearing resumption, her application for arbitration may be dismissed.

Following this failure to attend, Mazin Rooz Mazin brought a motion seeking to be removed as solicitors of record for Ms. Ryner, returnable on June 15, 2007 at 3:00 p.m. The firm served a Notice of Motion and Affidavit of Solicitor. It also filed an Affidavit of Service of Massimo Gentile, Process Server, which stated as follows:

On June 7, 2007 at approximately 7:40 p.m. I served Natisha Ryner With the Notice of Motion and Motion Record At …, Scarborough, Ontario By leaving a copy with Susie Surette At the time of services [sic] I was advised the Applicant did not reside at the said address. However, Susie Surette does in fact know the Applicant and her whereabouts. She was not willing to provide me the Applicants [sic] new address, she did however state that she would get in contact with Natisha Ryner and advised [sic] her of the legal documents I served. That I did attempt to contact the defendant [sic] at the last know [sic] telephone number as provided by the law firm of Mazin Rooz Mazin. The said number being … however it was no longer in service.²

Mazin Rooz Mazin filed the Affidavit of Alon Rooz which states that his firm currently has no meaningful instructions from Ms. Ryner.

Mazin Rooz Mazin also filed the Affidavit of Joe Stillo, a law clerk at their firm, which stated as follows at paragraphs 10 and 11:

I have attempted to contact Ms. Ryner on numerous occasions by telephone. However, her phone is not in service.

I have contacted both East Sheppard Rehabilitation Company and Phoenix Assessments, her treating clinics, to inquire whether they have any new contact information for Ms. Ryner. Both clinics advised that they have the same contact information for Ms. Ryner as our office.

Law:

The Dispute Resolution Practice Code (Fourth Edition — Updated October 2003) (the “Code”) sets out at Rules 9.7 and 9.8 what a representative who seeks to withdraw from a proceeding must do. The representative must provide the following:

(a) a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding;

(b) the last known address, telephone number and electronic transmission address (if any) of the represented party.

If the represented party does not provide written consent to the to the representative’s request for withdrawal, an adjudicator may permit the representative to withdraw, subject to such terms as the adjudicator considers just.

Conclusion:

Mazin Rooz Mazin have provided a written request for withdrawal of its representation of Ms. Ryner through its Notice of Motion and the Affidavits of Alon Rooz and Joe Stillo to all the parties to the proceeding. It attempted to serve the motion material on Ms. Ryner. The Affidavit of Service sets out Ms. Ryner’s last known address and telephone number.

In addition, Mazin Rooz Mazin also provided reasons for their request for withdrawal, namely that they are unable to obtain meaningful instructions from Ms. Ryner.

After numerous attempts with correspondence and by telephone, Mazin Rooz Mazin has not been able to contact Ms. Ryner. It also attempted to obtain updated contact information from her treatment providers. Further, she has not responded to the notices and letters from the Commission regarding her pre-hearing and resumption of pre-hearing. As a result, it is impossible for Mazin Rooz Mazin to obtain Ms. Ryner’s consent to its withdrawal as her representative.

Under section 9.1(c) of the Code, parties must provide the Dispute Resolution Group with written notice of any change to their address or telephone number. The Dispute Resolution Group is entitled to rely on their last known address and telephone number. Under all these circumstances, I find that Mazin Rooz Mazin has complied with the provisions of the Code and that it is appropriate to permit Mazin Rooz Mazin to withdraw as Ms. Ryner’s representative in this proceeding.

October 3, 2007 Anne Sone Date Arbitrator

Financial Services Commission of Ontario