Amir Salman v. Allstate Insurance Company of Canada, 2012 ONFSCDRS 129

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 129

FSCO A11-000956

BETWEEN:

AMIR SALMAN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Deborah Pressman

Heard: By telephone conference call on June 29, 2012 and July 17, 2012 and by written submissions.

Appearances: Wendy Sokoloff for Sokoloff Lawyers Mr. Salman, on his own behalf Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, Amir Salman, was injured in a motor vehicle accident on January 30, 2008. Mr. Salman applied for arbitration at the Financial Services Commission of Ontario.¹ Prior to Mr. Salman’s arbitration hearing, his representative, Ms. Sokoloff, brought a motion to withdraw as his representative. Mr. Salman contested the motion. The insurer, Allstate Insurance Company of Canada (“Allstate”), did not contest.

The issues in this hearing are:

Should Ms. Sokoloff be permitted to withdraw as Mr. Salman’s representative of record pursuant to the Dispute Resolution Practice Code?
Should there be any conditions on the withdrawal?

Result:

Ms. Sokoloff shall be permitted to withdraw as Mr. Salman’s representative of record.
The removal is conditional on Ms. Sokoloff continuing to make Mr. Salman’s file available for review at her office.

EVIDENCE AND ANALYSIS:

I am satisfied that there has been a breakdown in the solicitor-client relationship. Ms. Sokoloff is therefore permitted to withdraw as Mr. Salman’s representative conditional on her continuing to make Mr. Salman’s file available for review at her office.

Ms. Sokoloff submitted that her firm should be released as Mr. Salman’s representative on the grounds that there had been a breakdown in the solicitor and client relationship such that she could not continue to act as Mr. Salman’s representative. Ms. Sokoloff also requested to withdraw due to ethical reasons based on the solicitor-client relationship.

Although Mr. Salman admitted that he has lost confidence in Ms. Sokoloff’s ability to represent him, he requested that she remain as his representative. He submitted that her removal would prejudice and delay his case and that he is emotionally incapable of dealing with the stress associated with finding a new representative.

The guiding principles with respect to allowing 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.²

In R. v. Cunningham, the Supreme Court of Canada discussed the timing of the request and ethical reasons as follows:

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.…

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.…

If withdrawal is sought for an ethical reason, then the court must grant withdrawal.³

In this case, Ms. Sokoloff requested to withdraw as Mr. Salman’s representative on June 27, 2012, two months prior to his scheduled hearing. Although I adjourned Mr. Salman’s hearing, I granted the adjournment independent of Ms. Sokoloff’s request to withdraw because the original four-day hearing scheduled to commence in August, 2012, could not accommodate additional disputed issues that were making their way through the mediation and arbitration processes.⁴

With respect to the ethical reasons for withdrawal, I am satisfied that Ms. Sokoloff should not be forced to represent Mr. Salman. Mr. Salman and Ms. Sokoloff cannot reconcile their differences and that their solicitor-client relationship should not continue. The particulars provided with respect to the solicitor-client relationship encroach on potential issues of solicitor-client privilege. Therefore, I am sealing those particulars and they shall remain sealed, unless ordered otherwise by the hearing Arbitrator.

Rule 9.8 of the Dispute Resolution Practice Code provides an adjudicator with authority to place terms on a representative’s removal or withdrawal. While the rationale in Cunningham requires that Ms. Sokoloff be permitted to withdraw from representing Mr. Salman, I continue to have the authority to place such terms on her withdrawal as may be necessary to control this tribunal’s process.

The removal of Ms. Sokoloff is conditional on Ms. Sokoloff continuing to make Mr. Salman’s file available for review at her office.

Mr. Salman requested that Ms. Sokoloff release his entire file upon her withdrawal without any payment of fees and disbursements. Ms. Sokoloff did not agree to release Mr. Salman’s file. She submitted that the release of a client’s file and payment of fees and disbursements upon the withdrawal of a solicitor are addressed by the Law Society of Upper Canada’s Rules of Professional Conduct, the Solicitors Act, R.S.O. 1990, c. S.15, and the Rules of Civil Procedure, R.R.O. 1990, Regulation 194. I was not convinced that I have the authority under the Dispute Resolution Practice Code to determine whether Mr. Salman should pay fees and disbursements upon the withdrawal of his solicitor.

EXPENSES:

The parties did not make submissions on the issue of expenses. If the parties are unable to reach an agreement, they may request a determination pursuant to Rule 79 of the Dispute Resolution Practice Code.

August 31, 2012

Deborah Pressman Arbitrator

Date