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 79

FSCO A06-001767

BETWEEN:

E. P. (2)

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A PRELIMINARY ISSUE

(Motion to Be Removed from the Record)

Before: Arbitrator Denise Ashby

Heard: May 29, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Laura Wright for Ms. P. Laura Qaqish 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 (the Commission) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue is:

Is Ms. P.’s representative entitled to be removed as representative of record pursuant to Rule 9 of the Dispute Resolution Practice Code?

Result:

Ms. P’s Representative is removed as Ms. P’s representative of record effective May 29, 2009.
Ms. P. shall provide, by e-mail transmission to her former Representative, the Dispute Resolution Group and TTC, on or before July 20, 2009, the following:

a. Her current address and telephone number.

b. Her intention with respect to her representation at future proceedings, specifically whether she wishes to act on her own behalf or retain another representative.

c. Provided Ms. P. has retained another representative, she shall provide the representative’s name, address, telephone number and electronic transmission address (if any).
The Financial Services Commission shall deliver this decision and order to Ms. P. at the e-mail address found in the Motion Record.

EVIDENCE AND ANALYSIS:

Chronology:

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 3, 2009, Ms. P. was served with her Representative’s Motion Record which included the following materials:

Notice of Motion returnable on April 14, 2009 in which the Representative sought to be removed as solicitor of record; and
The Affidavit of Laura D. Wright which had 5 exhibits attached;
A draft Order

On April 7, 2009, Ms. P.’s Representative filed its motion record with the Commission together with a Statement of Service, in Form F, stating that Ms. P. had been served by e-mail at the address provided.

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. I adjourned the motion to be heard by the preliminary issue hearing arbitrator on May 5, 2009. My decision and order were delivered to Ms. P. by e-mail at the address provided in the Motion Record.

On April 30, 2009, Ms. P. responded to the Case Administrator as follows:

My apologies for not contacting you for my case, the reason, some one stole my handbag when I came to Philippines…so I kept waiting that you might send me an email, to inform me about my case…²

On May 5, 2009, Ms. P’s Representative’s Motion was adjourned to Friday, May 29, 2009, at which time a date would be set for the Preliminary Issue Hearing.

On May 28, 2009, Ms. P.’s e-mail dated April 30, 2009 was faxed to Ms. P.’s Representative and TTC.

Removal from the Record:

Ms. P.’s Representative submitted that the firm had made many unsuccessful attempts to contact Ms. P. since the Preliminary Issue Hearing was adjourned in April 2008. It had written to her at her last known Toronto address. It had retained a locator service to find Ms. P. Those inquiries led them to conclude that Ms. P. had returned to Bahrain. As well, the firm communicated with Ms. P. at the e-mail address she had provided. It received no response to those e-mails. However, on April 30, 2009, Ms. P. responded to the Commission’s e-mail. Therefore, the conclusion to be drawn is Ms. P. received Notice of the firm’s intention to be removed as Representative of Record and she chose not to communicate with them or to object. As a consequence, the firm should be removed as Representative of Record.

TTC took no position with respect to the firm’s motion.

On March 30, 2009, the firm e-mailed Ms. P. setting out the various attempts that had been made to contact her including the retaining of the locator service. She was asked to contact the firm by April 6, 2009. The firm advised Ms. P. that if she made no contact it would seek to be removed as representative of record.³

The e-mail address to which Ms. P. responded on April 30, 2009 was that used by the firm. I am satisfied that Ms. P. received all communications sent to that address from the firm and the Commission. Therefore, I find that Ms. P. had notice of her Representative’s motion to be removed as representative of record. I further find that Ms. P. was served with the Motion Record on or about April 3, 2009.

An essential element of the relationship between a representative and its client is communication. Ms. P. failed to provide her representative law firm with a current address and telephone number. She failed to respond to her Representative’s e-mails. This failure to communicate was fatal to the client and representative relationship. I find that there was a breakdown in that relationship such that the firm could not obtain instructions and therefore had no basis upon which to represent her. As a consequence, the firm is removed as representative of record effective May 29, 2009.

Procedural Issues:

Presently, the only means of communicating with Ms. P. is by e-mail. The Preliminary Issue Hearing has to be rescheduled. Ms. P. has indicated that she is hopeful that she will be able to return to Canada.⁴

Parties to proceedings at the Commission are expected to update the Commission’s records if there is a change in contact information. Rule 5.7(b) of the Dispute Resolution Practice Code (DRPC) provides for documents to be delivered to the last known address in the records of the Dispute Resolution Group or Commission. This address has been inaccurate since April 2008.

As Ms. P. is out of the country and not presently permitted to return, the telephone is the only means by which she could participate in future proceedings. Therefore, I require Ms. P. to provide the Commission with a current address and telephone number by July 20, 2009.

Ms. P. is now unrepresented. Pursuant to Rule 9.6 of the DRPC, Ms. P. must advise her former representative, the Commission and TTC, in writing, if she wishes to continue to represent herself.

In the alternative, Rule 9.5 of the Code provides:

A party who changes his or her representative must promptly notify the former representative, the other parties and the Dispute Resolution Group, in writing, of the name, address, telephone number and electronic transmission address (if any) of the new representative. The new representative must also confirm his or her appointment in writing. The Dispute Resolution Group is entitled to rely on the last written notification concerning a party’s representative contained in its files.

Ms. P. is required to advise her former representative, the Commission and TTC of her intentions with respect to her future representation by July 20, 2009. In the event she is able to retain a new representative by that date, she shall also provide the name, address, telephone number and electronic transmission address (if any) pursuant to Rule 9.5.

An e-mail from Ms. P. to her former representative, the Commission’s Case Administrator and the Representative for TTC will be sufficient written notification.

A resumption of the pre-hearing by teleconference before me shall be convened as soon as is practicable after July 20, 2009.

June 18, 2009

Denise Ashby Arbitrator

Date