Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 33

FSCO A09-001840

BETWEEN:

LUIS ALMEIDA

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

MOTIONS TO BE REMOVED FROM THE RECORD

AND DISMISSAL OF THE ARBITRATION

Before: Arbitrator Denise Ashby

Heard: March 28, 2011

Appearances: Shane Henry for Mr. Almeida, who did not attend

Marlett Dobson for Lombard General Insurance Company of Canada

Issues:

The Applicant, Luis Almeida, was involved in a motor vehicle accident on September 15, 2007. He applied for and received certain statutory accident benefits from Lombard General Insurance Company of Canada (“Lombard”), payable under the Schedule¹ but either he was denied benefits or the quantum of other benefits was in issue. The parties were unable to resolve their disputes through mediation, and Mr. Almeida applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

1. Should Shane Henry and the firm of Shekter, Dychtenberg LLP be removed as Luis Almeida’s Representatives of Record pursuant to Rule 9.7 of the Dispute Resolution Practice Code?

Should Luis Almeida’s Arbitration proceeding be dismissed pursuant to Rule 68 of the Dispute Resolution Practice Code?

Result:

Shane Henry and the firm of Shekter, Dychtenberg LLP are removed as Luis Almeida’s Representatives of Record.
The motion to dismiss Mr. Almeida’s Arbitration proceeding is adjourned to be heard on April 28, 2011 provided Lombard serves its Motion Record on Mr. Almeida, by courier and regular mail at his last known address which is [ . . . ], and files it with the Commission on or before April 18, 2011.

EVIDENCE AND ANALYSIS:

Motion to be Removed as Representative of Record:

The firm of Shekter, Dychtenberg LLP (the firm) submitted the affidavit of Alden Dychtenberg, a partner with the firm and someone who was familiar with Mr. Almeida’s claim, in support of its motion to be removed as Representatives of Record pursuant to Rule 9.7 of the Dispute Resolution Practice Code (DRPC).

On October 20, 2010, the firm wrote to Mr. Almeida setting out the problems the firm had with continuing its representation of him. Mr. Dychtenberg expressed a desire to meet with Mr. Almeida prior to terminating their retainer in order to discuss those differences.

In November 2010, Mr. Almeida left Canada without providing his Representative with a forwarding address or telephone number at which he could be reached. The firm believed that Mr. Almeida intended to return to Canada in March 2011.

On March 10, 2011, Mr. Henry wrote to Mr. Almeida at his last known address. He advised Mr. Almeida that he and his firm would be bringing a motion to be removed as Mr. Almeida’s Representatives of Record.²

Mr. Dychtenberg’s affidavit sets out numerous attempts the firm made to communicate with Mr. Almeida prior to his leaving the country in November 2010 and in March 2011 prior to Mr. Henry’s March 10, 2011 letter.

I found that Mr. Almeida’s failure to provide the firm of Shekter, Dychtenberg LLP and Sean Henry, his counsel, with a current address and telephone number and to provide instructions was sufficient evidence that there was a breakdown in the solicitor and his client relationship. Therefore, I ordered the firm and Mr. Henry removed as Mr. Almeida’s Representatives of Record, pursuant to Rule 9.7 of the DRPC, effective March 28, 2011.

Motion to Dismiss:

Lombard brought a motion to dismiss Mr. Almeida’s Arbitration proceeding without a hearing pursuant to Rule 68 of the DRPC.

Mr. Almeida did not attend the proceedings on March 28, 2011 notwithstanding he had been given Notice by the Commission and his counsel. Further, Mr. Henry attempted to contact his client by telephone, e-mail and by contacting family members during a recess in the proceedings. As well, the Case Administrator left a voice-mail message at a number provided by Mr. Henry asking Mr Almeida to contact her as soon as possible regarding “today’s” hearing.

As Lombard had not served a Notice of Motion or Motion Record in respect of the motion to dismiss the Arbitration proceeding I adjourned the motion, notwithstanding Mr. Almeida’s non-attendance. I scheduled the return of the motion on April 28, 2011 at 10:00 a.m. at the offices of the Financial Services Commission of Ontario.

I further order that service on Mr. Almeida shall be effected by serving him by courier and regular mail at his last known address which is [ . . . ], pursuant to Rule 7 of the DRPC.

April 1, 2011

Denise Ashby

Arbitrator

Date