Neutral Citation: 2010 ONFSCDRS 72 FSCO A08-001780

BETWEEN:

JAJENTHIRAN VADIVELU Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Richard Feldman Heard: By telephone conference call on May 19, 2010. Written material was received on May 7, 2010.

Appearances: Eric Boschetti, student-at-law, for Mazin, Rooz, Mazin Aldo Picchetti, solicitor for RBC General Insurance Company

Background:

The Applicant, Jajenthiran Vadivelu, claims to have been injured in a motor vehicle accident on June 11, 2007. He applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant’s entitlement to certain benefits. The parties were unable to resolve their disputes through mediation, and Mr. Vadivelu applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Application for Arbitration was filed on August 25, 2008 on behalf of the Applicant by Alon Rooz, solicitor with the law firm of Mazin, Rooz, Mazin. The Insurer filed its response approximately one month later. According to the record, a pre-hearing conference took place on February 19, 2009 at the offices of the Financial Services Commission of Ontario. Although a lawyer from the Mazin, Rooz, Mazin did attend the pre-hearing discussion, the Applicant failed to attend. The presiding arbitrator (Arbitrator Murray) was unable to contact the Applicant at either his home telephone number or his cell phone number. Consequently, RBC requested that the arbitrator issue a notice, pursuant to Rule 68.1 of the Dispute Resolution Practice Code (the “Code”), requesting written submissions from both parties as to why the application should not be dismissed as being frivolous, vexatious or having been commenced in bad faith. On June 11, 2009, Arbitrator Murray issued her decision in which she refused to dismiss this application based upon the material before her at that time.

On September 28, 2009, the pre-hearing discussion was resumed. The Applicant was expected to attend but, once again, he failed to attend. Nevertheless, an arbitration hearing was scheduled for four days, to commence on June 14, 2010.

In April 2010, counsel from Mazin, Rooz, Mazin indicated that they would be bringing a motion (pursuant to Rules 9.7 and 9.8 of the Code) for an order permitting them to remove themselves as solicitors of record for the Applicant. The motion was scheduled to be heard on May 19, 2010 by teleconference.

THIS MOTION IS FOR:

An order removing Mazin, Rooz, Mazin, as the solicitors of record for the Applicant; and
Such further and other relief as counsel may advise and as the Commission may deem just.

On May 19, 2010 I announced my decision orally and advised Mr. Picchetti and Mr. Boschetti that a formal written order would be issued in due course.

Result:

Mazin, Rooz, Mazin, are hereby removed as the solicitors of record for the Applicant.

EVIDENCE AND ANALYSIS:

Pursuant to Rule 9.7 of the Code, 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; and

(b) provide the last known address, telephone number and electronic transmission address (if any) of the represented party.

I find that Mazin, Rooz, Mazin has complied with these requirements.

Although Rule 9.7 does not state that the written request must be in the form of a motion, it is not uncommon for counsel to use that method. In this case, the motion material was sent by fax on May 7, 2010 to counsel for RBC. On that same date (May 7, 2010), the motion material was sent by regular mail to the Applicant at his last known address (as well as an alternate address). Pursuant to Rule 7.3(b) of the Code, these documents are deemed to have been received by the Applicant on May 12, 2010. This would provide the Applicant with seven days notice of the hearing of the motion. Since Rule 9.7 does not specify a minimum notice period or that the request need be in the form of a motion, seven days notice may well be sufficient. If, however, the Applicant ought to have been given ten days notice (as implicitly required for all motions by Rule 67), in the circumstances of this case, I find it appropriate to exercise my discretion under Rule 81 and waive the normal time requirements.

On May 19, 2010, I heard this motion by teleconference, as proposed in the Notice of Motion. Aldo Picchetti represented RBC and Eric Boschetti, student-at-law, appeared on behalf of Mazin, Rooz, Mazin. I was unable to contact the Applicant at either of the telephone numbers he provided to his counsel. His home telephone number was not in service. There was no response at the other (cell) number (identified in the supporting affidavit as the Applicant’s last known telephone number). The Applicant apparently made no attempt to contact either his counsel or the Financial Services Commission immediately before or on the day of the hearing of this motion.

Based upon the affidavit evidence filed in support of this motion (which is the only evidence before me), I find that there has been a breakdown of the solicitor-client relationship between the Applicant and the firm of Mazin, Rooz, Mazin and that this firm currently has no meaningful instructions from the Applicant.

RBC is taking no position with respect to this motion. The Applicant did not file any material or participate in any other manner. Thus, this motion was uncontested.

Although I am mindful that the hearing is currently scheduled to commence in mid-June 2010, in all of the circumstances of this case, I find it appropriate to grant this motion.

June 2, 2010

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario