Gurdip Singh v. Guarantee Company of North America, 2009 ONFSCDRS 68

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 68

FSCO A04-001685

BETWEEN:

GURDIP SINGH

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION on a MOTION

Before: Suesan Alves

Heard: By telephone conference call on June 2, 2009.

Appearances: Tal Eshel-Berkman for Mr. Singh

Keri Wilson for Guarantee Company of North America

Issues:

Ms. Eshel-Berkman brought a motion to be removed as Mr. Singh’s representative based on a breakdown in their relationship. Guarantee sought an award of its expenses and an Order that they be paid by Ms. Eshel-Berkman or by Canadian Injury Management Centre.

The issues on this motion are:

Should Ms. Eshel-Berkman be permitted to withdraw as the Applicant’s representative pursuant to Rule 9 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003?
Is Ms. Eshel-Berkman or Canadian Injury Management Centre liable to pay Guarantee’s expenses pursuant to section 282(11.2) of the Insurance Act, R.S.O. 1990, c. I.8 as amended.?

Result:

Ms. Eshel-Berkman should not be permitted to withdraw as the Applicant’s representative.
Guarantee’s motion for expenses is adjourned to permit Ms. Eshel-Berkman to file responding submissions by July 2, 2009. Guarantee may file reply submissions by July 13, 2009.

EVIDENCE AND ANALYSIS:

Status of Ms. Eshel-Berkman

Ms. Eshel-Berkman brought a motion to be removed as Mr. Singh’s representative based on a breakdown in their relationship.

In her documents, she refers to herself as Mr. Singh’s legal representative and seeks to be removed as his representative. However, on May 2, 2009, she advised that Mr. Singh had retained Canadian Injury Management Centre, which had now closed down.

Rule 9.8 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003. states:

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

Ms. Eshel-Berkman did not file a written consent from Mr. Singh. When asked if he agreed that their relationship had broken down, Mr. Singh at one point stated through the interpreter “I have nothing to say. Whatever she is doing, let her do.” When asked if he agreed that Ms. Eshel-Berkhman would no longer represent him, he twice indicated that he was not sure what he should say. On one of these occasions he stated that “last week I received her letter; two days before she sent the file and last night she called me. I don’t know where I am standing and what I should say.”

I am not persuaded that Mr. Singh could be said to be in agreement with Ms. Eshel-Berkman’s withdrawal or with her assessment that there had been a breakdown in their relationship.

I am not persuaded that I should permit Ms. Eshel-Berkman to withdraw as Mr. Singh’s representative at this time because of her outstanding undertaking to this tribunal. On November 21, 2008, Ms. Eshel-Berkman undertook to file written submissions by March 2, 2009 which responded to the Insurer’s motion that Mr. Singh was precluded from proceeding to arbitration because of delay; because he failed to attend two insurer examinations, and failed to provide OHIP summaries and records. In my view, Ms. Eshel-Berkman should not be permitted to withdraw until this undertaking has been satisfied.

This arbitration concerns Mr. Singh’s claim for medical benefits as a result of an accident which took place on July 28, 1999. Those benefits are available to Mr. Singh for a period of 10 years from the date of the accident. According to Guarantee’s calculations, Mr. Singh has a further 56 days during which he can claim such benefits. I am concerned that allowing Ms. Eshel-Berkman to withdraw at this time could be prejudicial to his assertion of medical claims, particularly those which may be in progress. It was clear that Ms. Eshel-Berkman had attempted to assist Mr. Singh in obtaining a new representative. However, no-one has as yet agreed to take his case.

The Insurer’s claim for expenses

Guarantee seeks expenses and submitted that they should be paid by Ms. Eshel-Berkman or by Canadian Injury Management Centre.

Guarantee served Ms. Eshel-Berkman with its supplementary materials on the eve of the June 2, 2009 resumption. Ms. Eshel-Berkman objected to proceeding on this issue as she had not had an opportunity to review the materials with Mr. Singh or to file responding materials.

In the circumstances I was prepared to allow Ms. Eshel-Berkman a further period of 30 days, until July 2, 2009, in which to serve and file a written response to the Insurer’s motion to stay the arbitration and to respond to the Insurer’s claim for expenses.

I was prepared to allow Ms. Wilson until July 13, 2009 to file any reply materials to the written submissions on these points. I will then provide the parties with my decision in writing with reasons.

June 3, 2009

Suesan Alves

Arbitrator

Date