Neutral Citation: 2010 ONFSCDRS 52

FSCO A09-000485

BETWEEN:

MOHAMED EL BEHIRY Applicant

and

SECURITY NATIONAL INSURANCE CO./ MONNEX INSURANCE MGMT. INC. Insurer

DECISION ON A MOTION

Before: Arbitrator Ashby

Heard: February 26, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Tony Affecto for Louis Mostyn Mr. El Behiry, on his own behalf Jason Hickman for Security National Insurance Co./ Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Mohamed El Behiry, was injured in a motor vehicle accident on August 17, 2007. He applied for and received certain statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule¹ which it subsequently stopped or denied. The parties were unable to resolve their disputes through mediation, and Mr. El Behiry 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 in this hearing are:

Should Louis Mostyn be removed as Mohamed El Behiry’s representative of record pursuant to Rule 9 of the Dispute Resolution Practice Code?
Is Louis Mostyn required to disclose documents in his care and control to Security National?

Result:

Louis Mostyn shall be removed as representative of record.
Louis Mostyn shall release to Mohamed El Behiry all employers’ records, clinical notes and records and other documents obtained from Mr. El Behiry, Security National or third parties which relate to the arbitration proceeding and are in Mr. Mostyn’s care and control on or before May 21, 2010.
The Ministry of Community and Social Services letter dated September 9, 2009 and marked as Exhibit 5 and the psychological report dated March 15, 2009 and marked as Exhibit 6 shall be sealed in an envelope until either of the parties seeks to have either or both of the Exhibits admitted as evidence at the hearing and an arbitrator determines the issue.

PROCEDURAL ISSUES:

Mr. El Behiry sought admission of a letter from the Ministry of Community and Social Services dated September 9, 2009 and a psychological report dated March 15, 2009, in support of his submission that he was unable to represent himself and Mr. Mostyn should continue to represent him in the arbitration. Mr. Mostyn consented to their admission. Security National submitted that admission of the letter and the report, at this preliminary proceeding, would prejudice its ability to have them excluded at the hearing.

I found that both the letter and the report were relevant to my determination of whether Mr. Mostyn should be removed as Mr. El Behiry’s representative. As a consequence they were admitted and marked as Exhibits 5 and 6 respectively. This order was without prejudice to a hearing arbitrator excluding them at hearing. I further ordered that these Exhibits be sealed following the release of my decision until such time as either of the parties sought to have either or both Exhibits admitted as evidence and the hearing arbitrator determined the issue.

EVIDENCE AND ANALYSIS:

Chronology:

On July 21, 2009, I wrote to the parties confirming their advice that they had reached a settlement of the issues subject to compliance with subsections 9.1 and 9.2 of Ontario Regulation 664, as amended.

On December 3, 2009, Mr. Mostyn advised the Commission that he was seeking to have himself removed as Mr. El Behiry’s representative pursuant to Rule 9.7 of the Dispute Resolution Practice Code (the “Code”). In his letter, Mr. Mostyn advised that he was of the opinion that “there had been an irreparable breakdown in our solicitor-client relationship.” He enclosed an Order of the Ontario Superior Court of Justice entered on November 9, 2009, removing Mr. Mostyn’s firm as solicitors of record for Mr. El Behiry in respect of Court File No. 03-CV-254754.²

On January 5, 2010, Mr. Mostyn’s firm was removed as Mr. El Behiry’s solicitors of record in respect of Court File No. CV-09-383392.³

Removal from the Record:

Mr. Mostyn submitted that he should be released as Mr. El Behiry’s representative pursuant to Rule 9 of the Code on the basis that there had been a breakdown in the solicitor and his client relationship such that he could not continue to act.

Mr. El Behiry submitted that although there were disagreements between himself and Mr. Mostyn he had confidence in Mr. Mostyn’s ability to represent him. Further, he did not believe that he was physically or emotionally able to represent himself at a hearing which in his view requires the ability to concentrate for long periods as well as physical and emotional stamina which he does not possess. Mr. El Behiry also acknowledged that Mr. Mostyn should not be forced to represent him and perhaps they could discuss their differences in the hope that the solicitor-client relationship could continue.

Security National took no position with respect to the issue of Mr. Mostyn’s removal from the record.

On March 26, 2010, the Supreme Court released its decision in Regina v. Cunningham⁴. In a unanimous decision it held that a court or tribunal has the authority to refuse defence counsel’s request to withdraw for non-payment of fees in a criminal matter. The Court affirmed its decision in ATCO Gas and Pipelines Ltd. V. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at paragraph 51, that a tribunal’s authority to deal with withdrawal or removal of counsel and thus control its own process flows from the “doctrine of necessary implication”. It then applied this doctrine to statutory courts, which unlike Federal courts, do not have inherent jurisdiction in such matters.⁵

In Cunningham, Justice Rothstein held:

The court’s exercise of discretion to decide counsel’s application for withdrawal should be guided by the following principles.

If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.

Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite “ethical reasons” as the reason for withdrawal, if for example, the accused is requesting that counsel act in violation of his or her professional obligations...If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for “ethical reasons”. However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.

If withdrawal is sought for an ethical reason, then the court must grant withdrawal. Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities...⁶

This decision provides no scope for requiring counsel to continue because his or her client is unable to represent themselves for the reasons submitted by Mr. El Behiry. The determinative principles with respect to a request to withdraw as representative of record are the timing of the request in respect of scheduled proceedings and whether counsel seeks to withdraw for ethical reasons.

In this matter, there are no proceedings scheduled for which an adjournment would be required. Therefore, Mr. Mostyn is entitled to be removed as Mr. El-Behiry’s representative pursuant to Justice Rothstein’s first principle. Further, Mr. Mostyn advised that there had been a breakdown in the solicitor and his client relationship such that he could not act. This rationale invokes the second principle relating to a lawyer’s ethical obligations. In these circumstances, an adjudicator or judge must accept counsel’s reason and has no discretion to deny the request to withdraw.

On the basis of the foregoing, Mr. Mostyn is removed as Mr. El Behiry’s representative of record.

Production Issues:

Security National seeks an Order requiring Mr. Mostyn to produce all documents he agreed to produce as part of the pre-hearing process. Neither Mr. Mostyn nor Mr. El Behiry made submissions with respect to this issue.

Rule 9.8 of the Code provides an adjudicator with authority to place terms on a representative’s removal or withdrawal. While the ratio in Cunningham requires that Mr. Mostyn be permitted to withdraw from representing Mr. El Behiry, I continue to have authority to place such terms on his withdrawal as may be necessary to control this tribunal’s process.

I find that requiring Mr. Mostyn to disclose records and documents to Security National would prejudice Mr. El-Behiry or his new representative from seeking to have them protected from disclosure. However, there is a significant probability that the withholding of these materials from Mr. El-Behiry would unreasonably delay the continuation of these proceedings. This would deny the parties a timely resolution of this dispute which is a primary objective of proceedings before the Commission. Therefore, Mr. Mostyn shall release to Mr. El Behiry all employers’ records, clinical notes and records and other documents obtained from Mr. El Behiry, Security National or third parties which are within Mr. Mostyn’s care and control on or before May 21, 2010.

April 28, 2010

Denise Ashby Arbitrator

ARBITRATION ORDER

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

Louis Mostyn shall be removed as representative of record.
Louis Mostyn shall release to Mohamed El Behiry all employers’ records, clinical notes and records and other documents obtained from Mr. El Behiry, Security National or third parties which relate to the arbitration proceeding and are in Mr. Mostyn’s care and control on or before May 21, 2010.
The Ministry of Community and Social Services letter dated September 9, 2009 and marked as Exhibit 5 and the psychological report dated March 15, 2009 and marked as Exhibit 6 shall be sealed in an envelope until either of the parties seeks to have either or both of the Exhibits admitted as evidence at the hearing and an arbitrator determines the issue.