Lirim Murtezovski v. ING Insurance Company of Canada, 2008 ONFSCDRS 142

Financial Services Commission of Ontario

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 142

FSCO A07-002344

BETWEEN:

LIRIM MURTEZOVSKI

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

PRE-HEARING DECISION

Before: Eban Bayefsky

Heard: By telephone conference call on March 3 and June 27, 2008 Written submissions were completed by July 25, 2008

Appearances: Judy Beckett for Mr. Murtezovski Corinne P. Habkirk for ING Insurance Company of Canada

Issues:

The Applicant, Lirim Murtezovski, was injured in a motor vehicle accident on January 10, 2006. He applied for statutory accident benefits from ING Insurance Company of Canada (“ING”), payable under the Schedule.¹ ING denied Mr. Murtezovski’s claim for weekly income replacement benefits and medical benefits. The parties were unable to resolve their disputes through mediation, and Mr. Murtezovski applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On the first day of the pre-hearing conference, March 3, 2008, ING brought a motion to have various records produced by the Department of Justice Canada and the London Police Service. By May 9, 2008, counsel for Mr. Murtezovski, Ms. Beckett, was in a position to advise that ING’s production motion could go unopposed. Following this, but prior to the pre-hearing resumption on June 27, 2008, Ms. Beckett sought to have her firm, Ledroit Beckett, removed from the record as Mr. Murtezovski’s representatives. As set out below, this was not confirmed and finally determined until after the pre-hearing resumption.

The issues are:

1. Is the Department of Justice Canada required to produce the contents of the Crown Brief pertaining to various charges laid against Mr. Murtezovski?

2. Is the London Police Service required to produce any additional police records not contained in the Crown Brief?

3. Is Ledroit Beckett entitled to be removed from the record as Mr. Murtezovski’s representatives?

Result:

1. The Department of Justice Canada shall produce the contents of the Crown Brief pertaining to Mr. Murtezovski, in accordance with the attached Order.

2. The London Police Service shall produce any additional police records not contained in the Crown Brief, in accordance with the attached Order.

3. Ledroit Beckett is removed from the record as Mr. Murtezovski’s representatives.

EVIDENCE AND ANALYSIS:

On March 3, 2008, I conducted a pre-hearing conference in this matter. In the pre-hearing letter, I set out the issues for arbitration, in part, as follows:

1. Is Mr. Murtezovski entitled to receive a weekly income replacement benefit, from January 17, 2006, onward, at a rate of $145.83 per week, pursuant to section 4 of the Schedule?

ING disputes Mr. Murtezovski's entitlement to these benefits, in part, pursuant to sections 30(2), 32(1.1), 32(3) and 33(2) of the Schedule. ING also seeks the deduction of post-accident income generated by Mr. Murtezovski.

2. Is Mr. Murtezovski entitled to receive a medical benefit for prescription expenses from January 31, 2006, onward (in the amount of $9,051.71 as of March 3, 2008), claimed pursuant to section 14 of the Schedule?

ING disputes Mr. Murtezovski's entitlement to these benefits, in part, pursuant to sections 38 and 38.1 of the Schedule.

In support of its motion for the production of documents from the Department of Justice Canada and the London Police Service, ING filed an affidavit sworn by Joel Timmerman, an associate at the law firm of Dyer Brown LLP. In the affidavit, Mr. Timmerman deposed, in part, as follows:

4. During the course of our client’s investigation of the Accident Benefits claimed it was discovered that the Applicant was charged in February 2006 with a variety of drug related offences after the motor vehicle accident.

5. …we had just become aware as well that in addition to the criminal charges the Applicant was being investigated by the Canada Revenue Agency.

6. …Because the Applicant has been charged with selling prohibited drugs involving rather large quantities, it is the position of the Respondent that in order to properly investigate the Applicant’s entitlement to Income Replacement Benefits, the Crown Brief must be reviewed. If the Applicant was receiving income from the sale of prohibited drugs prior to the motor vehicle accident this may affect the quantum of his entitlement to an Income Replacement Benefit. If the Applicant was receiving income from the sale of illicit drugs after the motor vehicle accident, his entitlement to income replacement benefits would be reduced or eliminated because any post-accident income must be deducted from Income Replacement Benefits pursuant to Section 6(2) of the Statutory Accident Benefits Schedule.

7. The Applicant has been charged under both subsection 5(4) and 5(3)(a) of the Controlled Drug and Substances Act with trafficking a substance prohibited in the schedules to the Act. He has also been charged with possessing substances included in Schedules I, II or III of the Act. Schedule I of the said Act includes Oxycodone which is a medication which has been prescribed in large quantities to the Applicant since the subject motor vehicle accident. In a 1 year period commencing on March 2006 the Applicant claimed for reimbursement for Oxycodone in the amount of $3,388.63 which represents a total of 1490 pills. Oxycodone is a narcotic similar to morphine… .

8. Our client also takes the position that the Applicant is disentitled to the benefits sought as a result of material misrepresentations made by the Applicant and/or the policy holder…at the time that the insurance policy for the date of loss was entered into and/or there was a failure on the part of the Applicant or the policy holder to notify ING of a material change in risk.

9. …I verily believe that the production of the information and documents are necessary for the Arbitration Hearing and it may well have a significant impact on both the issue of Income Replacement Benefits and the prescription expenses.

The Department of Justice Canada and the London Police Service were notified of ING’s motion. By emails dated February 29, 2008, both Mr. James Gorham (Counsel, Public Law Section, Department of Justice) and Mr. Bruce Brown (Director, Legal Services, London Police Service) advised that they approved of the draft production order submitted by ING and would not be appearing at the motion. By letter dated April 4, 2008, counsel for Mr. Murtezovski, Ms. Beckett, advised that she had received written confirmation from the solicitor for Mr. Murtezovski in the criminal proceedings as follows: “I acknowledge receipt of your fax transmission and have reviewed the Order attached. In my view, there is nothing in this Order which work to the prejudice of Mr. Murtezovski [i]n the context of his criminal charges.” By letter dated May 9, 2008, Ms. Beckett advised that “the draft Order proposed by Ms. Habkirk can proceed ‘unopposed.’” At the pre-hearing resumption, on June 27, 2008, Ms. Beckett confirmed that she had received instructions from Mr. Murtezovski on ING’s production motion prior to her seeking to be removed from the record.

I am satisfied that the materials sought by ING from the Department of Justice Canada and the London Police Service are relevant to the issues in dispute in the arbitration. None of the parties involved have objected to the production of this information. ING’s motion is granted, in accordance with the attached Order.

Prior to the pre-hearing resumption, by letter dated June 18, 2008 to the Commission (and copied to Mr. Murtezovski), Ms. Beckett advised that “the firm of Ledroit Beckett will no longer be acting for Lirim Murtezovski in this matter.” Ms. Beckett indicated that she had “reminded Mr. Murtezovski of the scheduled pre-[a]rbitration telephone conference call at 2:00 p.m. on Friday, June 27, 2008 and confirmed that he will be available by telephone at [his home telephone number].” In response, the Commission reminded Ms. Beckett of Rule 9.7 of the Dispute Resolution Practice Code, which requires a representative who seeks to withdraw from a proceeding to provide a written request, with reasons, to the Commission and all parties to the proceeding, along with the last known address and telephone number of the represented party.

The pre-hearing conference resumed on June 27, 2008 by telephone. Ms. Beckett had yet to provide a written request to be removed from the record as Mr. Murtezovski’s representative. I called Mr. Murtezovski’s home, but was advised by a woman who answered that Mr. Murtezovski was not there. Ms. Beckett then attempted to call Mr. Murtezovski, but got his answering machine, and left a message. On behalf of ING, Ms. Habkirk advised that she did not oppose Ms. Beckett’s request to get off the record. Following the pre-hearing conference, on June 27, 2008, Ms. Beckett wrote the Commission, with a copy to Mr. Murtezovski, seeking to “be removed as solicitor of record for Mr. Murtezovski.” Ms. Beckett advised that “the solicitor/client relationship ha[d] broken down and cannot be repaired.” She provided Mr. Murtezovski’s last known address and telephone number, which corresponded with the information in the Commission’s file. On July 14, 2008, I wrote Mr. Murtezovski, ING and counsel, ordering Mr. Murtezovski to advise the Commission, by July 25, 2008, “of his position, if any, on Ms. Beckett’s request” to be removed from the record as his representative. I received no response to this correspondence. I have no evidence to suggest that Mr. Murtezovski did not receive this correspondence. I am satisfied that he received it, as well as the other correspondence on file.

In all of the circumstances, I am satisfied that there has been a breakdown in the solicitor-client relationship between Ms. Beckett’s firm and Mr. Murtezovski. The law firm of Ledroit Beckett is, hereby, removed from the record as Mr. Murtezovski’s representatives.

The Commission’s Case Administrator will attempt to contact Mr. Murtezovski and ING to set a date for the resumption of the pre-hearing conference, at which time dates for the arbitration hearing will be scheduled.

EXPENSES:

The parties did not address the issue of expenses at the pre-hearing conference. This issue is deferred to the hearing arbitrator to be determined in all of the circumstances of the case.

August 22, 2008

Eban Bayefsky Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 142

FSCO A07-002344

BETWEEN:

LIRIM MURTEZOVSKI

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. The Department of Justice Canada shall produce to ING Insurance Company of Canada the contents of the Crown Brief, and the London Police Service shall produce to ING Insurance Company of Canada any additional police records that are not contained in the Crown Brief, pertaining to the following charges laid against Mr. Lirim Murtezovski:

i. Count 1: conspiracy to commit an indictable offence, section 465(1)(c), February 1, 2006, Criminal Code of Canada;

ii. Count 2: trafficking, section 5(3)(a) Controlled Drug and Substance Act, February 3, 2006;

iii. Count 3: possession of substance, section 4(5) Controlled Drug and Substance Act, February 3, 2006;

iv. Count 4: trafficking in a substance, section 5(4), Controlled Drug and Substance Act, February 3, 2006;

subject to the following conditions and limitations:

i. The documents shall be edited to remove personal private information, such as police identification numbers, personal information relating to persons who are not party to these proceedings, driver’s licence numbers, employment information, motor vehicle plate and vehicle identification numbers, fingerprint services numbers and police officers’ dates of birth;

ii. The documents shall be edited to remove any information which could compromise law enforcement interests; and

iii. The documents shall be edited to remove any information over which privilege is claimed.

2. Counsel and the parties are hereby granted leave to use the documents produced for the purposes of this proceeding. Counsel shall not use, disclose, copy or produce the documents produced pursuant to this Order or any information contained therein to any other person, or use the documents for any other purpose.

3. The Department of Justice Canada and the London Police Service shall produce the records referred to above within 14 days of the resolution of the underlying criminal prosecution for which the documents relate.

4. Ledroit Beckett is removed from the record as Mr. Murtezovski’s representatives.

August 22, 2008

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.