Nuno Pereira v. TD General Insurance Company, 2012 ONFSCDRS 131

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 131

FSCO A11-001919

BETWEEN:

NUNO PEREIRA

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before: Fred Sampliner

Heard: August 23, 2012, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Alan Honner for Mr. Pereira Deborah Starkman for TD General Insurance Company

Issues:

The Applicant, Nuno Pereira, claims he was injured in a motor vehicle accident on February 10, 2010. His claims for statutory accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule¹, are the subject of this arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

Mr. Pereira did not attend the scheduled August 23, 2012 pre-hearing at this Tribunal’s offices. His legal counsel, Mazin Rooz Mazin (“MRM”), requested an Order to be removed as his representative, pursuant to its August 8, 2012 motion.

The issue is:

Should MRM be removed as counsel for Mr. Pereira?

Result:

MRM should be removed as Mr. Pereira’s representative.

EVIDENCE AND ANALYSIS:

MRM filed its motion requesting removal as Mr. Pereira’s counsel because he was not responding to the firm’s attempts to communicate with him. Rule 9 of the Dispute Resolution Practice Code requires a representative who wants to withdraw from the proceeding to give the Tribunal reasons for the request and to serve notice on all the parties.

MRM’s statement of service, dated August 8, 2012, attests that a copy of the motion record was sent by registered mail to Mr. Pereira at the address on record at this Tribunal. On August 8, 2012, this Tribunal sent Mr. Pereira a notice of hearing on the motion for August 23, 2012.

None of the Tribunal’s mail to Mr. Pereira has been returned and MRM’s affidavit likewise states that its mailings to Mr. Pereira have not been returned by postal authorities. I find that Mr. Pereira was sent notice of the hearing to his home address and that he has had adequate opportunity to respond before the August 23, 2012 hearing date.

The affidavit of MRM’s legal assistant sets out that the firm mailed Mr. Pereira six letters between November 2011 and July 2012. He has not responded by telephone or in writing to any of them. The affidavit also explains that the firm has made telephone and e-mail communication attempts to contact Mr. Pereira, but these have not prompted him to respond.

Mr. Pereira did not respond to MRM’s motion in writing or by appearing at the August 23, 2012 hearing. He has not explained his position or objected to his counsel’s removal request. I find that MRM’s lawyer/client relationship has broken down, and its motion to be removed as Mr. Pereira’s legal counsel should be granted under Rule 9 of the Dispute Resolution Practice Code.

TD General intends to file a motion to dismiss Mr. Pereira’s arbitration under Rule 68 of the Dispute Resolution Practice Code. On the basis of TD General’s statement, I have instructed the Case Administrator to schedule a hearing on its motion for 10:00 a.m., Friday, January 25, 2013, at this Tribunal’s offices. I intend to consider the parties’ expense claims respecting this arbitration at that time.

Mr. Pereira should take note that the five months until the January 25, 2013 hearing affords him an adequate opportunity to obtain a new legal representative, and that expenses may be awarded against him if he does not respond.

September 6, 2012

Fred Sampliner Arbitrator

Date