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

NOTE: ARBITRATOR DOES NOT WISH DECISION TO GO ON FSCO WEBSITE.

Neutral Citation: 2009 ONFSCDRS 49

FSCO A06-001767

BETWEEN:

E. P. Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

DECISION ON A PRELIMINARY ISSUE

(Motion to Be Removed from the Record)

Before: Arbitrator Denise Ashby

Heard: By telephone conference call on April 23, 2009.

Appearances: Carly March for Ms. P. Chad Townsend for TTC Insurance Company Limited

Issues:

The Applicant, E. P., claimed to have been injured in a motor vehicle accident on January 25, 2006. She applied for and was denied statutory accident benefits from TTC Insurance Company Limited (“TTC”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. P. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues are:

Is Ms. P.’s Representative entitled to be removed as representatives of record pursuant to Rule 9 of the Dispute Resolution Practice Code?
Shall the Motion Record and any Responding Motion Record filed by Ms. P’s Representative be sealed?

Result:

Ms. P.’s Representative shall serve its motion record on TTC.
Ms. P’s Representative’s motion to be removed as Ms. Priela’s representative and to seal the motion record is adjourned to be heard by the Preliminary Issue Hearing Arbitrator.

EVIDENCE AND ANALYSIS:

On April 21, 2008, I adjourned the preliminary issue hearing which was scheduled to commence on May 5, 2008 to May 5 and 6, 2009, on the basis that “Ms. P. is prevented from participating as she has been denied entry to the country.”

On April 7, 2009, Ms. P.’s Representative filed its motion record with the Commission. The motion was set as returnable on April 14, 2009. The record had not been served on TTC.

On April 8, 2009, the Commission issued a Notice of Motion that the Motion was to be conducted in writing. TTC was required to respond by April 17, 2009 and Ms. P.’s Representative was to reply by April 27, 2009.

TTC contacted the Commission to advise that as it had not been served with the Motion Record it was not in a position to respond.

On April 9, 2009, Ms. P.’s Representative served and filed a Revised Notice of Motion seeking an order removing it as representative of record and seeking an order sealing the Motion Record and any Responding Motion Record that it might file on behalf of the Applicant.

On April 23, 2009, the motion was convened before me on an urgent basis to deal with Ms. P.’s Representative’s failure to serve TTC with the motion record.

TTC submitted that it could not participate meaningfully in the motion as it had not been served with the motion record.

Ms. P.’s Representative responded that the Record contained information which it believes is protected by solicitor and client privilege therefore it had not served TTC. It further submitted that it was precluded from serving TTC with the record by the Rules of Professional Conduct which governs lawyers in this province. The parties agreed that there is an exception where a tribunal orders that the information be released.

Rule 9.7 provides:

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.

The Rule is drafted in mandatory language. Having read the Motion Record, I am satisfied that there is nothing within it which cannot reasonably be disclosed to TTC. Therefore, I exercise my discretion to order Ms. P.’s Representative to serve its motion record on TTC forthwith.

Rule 67.5 prescribes 10 days for a responding party to serve and file its material. Given the preliminary issue hearing is scheduled to commence on May 5, it is reasonable to adjourn the motion to be heard orally by the preliminary issue hearing arbitrator.

I also order that the Commission will deliver this decision and order to Ms. P. at the e-mail address found within the motion record.

April 23, 2009

Denise Ashby Arbitrator

Date