Earl Moore v. CAA Insurance Company (Ontario), 2009 ONFSCDRS 154

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

Neutral Citation: 2009 ONFSCDRS 154

FSCO A05-002167

BETWEEN:

EARL MOORE

Applicant

and

CAA INSURANCE COMPANY (ONTARIO)

Insurer

REASONS FOR DECISION

Before: Arbitrator Suesan Alves

Heard: By telephone conference call on September 10, 2009.

Appearances: Janet Grevler for David Share Associates Earl Moore on his own behalf No-one attending for CAA Insurance Company (Ontario)

Issues:

The Applicant, Earl Moore, was injured in a motor vehicle accident on April 9, 2001. He applied for arbitration in relation to his claims for statutory accident benefits from CAA Insurance Company (Ontario) (“CAA”), payable under the Schedule.¹

David Share Associates seeks an Order removing the firm as Mr. Moore’s representative in this arbitration. Mr. Moore seeks an adjournment of the motion. CAA took no position.

The issues in this hearing are:

Should the motion brought by David Share Associates be adjourned?
Should the offices of David Share Associates be removed as Mr. Moore’s representative in these proceedings?

Result:

The motion should proceed.
The firm of David Share Associates is removed as the representative of Mr. Earl Moore in these proceedings.

EVIDENCE AND ANALYSIS:

Background

The Applicant, Earl Moore, was injured in a motor vehicle accident on April 9, 2001. He commenced this arbitration for statutory accident benefits from CAA Insurance Company (Ontario) (“CAA”), payable under the Schedule. At the time he did so he was represented by counsel, David Share Associates.

David Share Associates first sought an Order removing the firm as Mr. Moore’s representative in July 2008, based on their inability to obtain instructions. At that time Mr. Moore’s position was that he wished David Share Associates to continue to represent him.

Counsel for David Share Associates advised that in the past, Mr. Moore had been represented by the Public Guardian & Trustee. Mr. Moore was clear that he did not wish that representation. Mr. Moore complained of cognitive difficulties and stated that he wished to be represented by a lawyer in these proceedings. I directed a hearing by way of a preliminary issue to determine whether Mr. Moore had the capacity to represent himself in the dispute resolution process.

In July 2009, Arbitrator Feldman conducted that hearing and determined that there was insufficient evidence to dislodge the presumption that Mr. Moore has the mental capacity to proceed in the dispute resolution process.

David Share Associates then brought this further motion, returnable on September 10, 2009, to be removed as Mr. Moore’s representative pursuant to Rule 9 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003.

Adjournment Request

Mr. Moore advised that he had consulted with three lawyers since July 2008, without finding someone who would take his case or with whom he was satisfied. Mr. Moore sought an adjournment on the basis that he had spoken with still another lawyer who was out of the country until September 22, 2009. That lawyer had instructed him to ask for an adjournment, however, he had not as yet retained him.

Ms. Grevler, counsel for David Share Associates objected to the adjournment as its request for a removal order in these proceedings had been made more than a year before. She submitted that the basis of the removal motion was a breakdown in the solicitor client relationship. That would not change regardless of whether new counsel agrees to get on the record. Further, given the Order of Arbitrator Feldman, there was no longer a need to involve the Public Guardian & Trustee or for their firm to stay on to bridge the gap in time.

I denied the adjournment request. I was not persuaded that any useful purpose would be served by further adjourning the removal motion. I accept that Mr. Moore has been making efforts to retain counsel over the past year so that this matter can be efficiently transferred to his new representative; however, this has not as yet occurred. I have given Mr. Moore a considerable period of time to do this because of his complaints of cognitive difficulty and the possible need to involve the offices of the Public Guardian & Trustee. In the face of Arbitrator Feldman’s Order, that there was insufficient evidence to dislodge the presumption that Mr. Moore has the mental capacity to proceed in the Dispute Resolution process, I was not persuaded that I should continue to adjourn the removal motion until Mr. Moore retains new counsel. I therefore proceeded with the motion for removal.

Removal motion

At this motion, Mr. Moore agreed that there was a breakdown in the solicitor client relationship. I was satisfied that this was the case and ordered the firm of David Share Associates removed as Mr. Moore’s representative.

Mr. Moore confirmed that the Commission’s information as to his address and phone number is correct. He is to advise whether he has retained new counsel by December 2, 2009. Alternatively, his proposed counsel may do so on his behalf. The pre-hearing will resume on December 16, 2009 at 10:00 a.m via teleconference call arranged by the Financial Services Commission of Ontario. This date was convenient to Mr. Moore, his proposed counsel and to counsel for CAA.

November 6, 2009

Suesan Alves Arbitrator

Date