Boti v. Motor Vehicle Accident Claims Fund, 2012 ONFSCDRS 139

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 139

FSCO A11-001170

BETWEEN:

HELEN BOTI

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

MOTION

Before: Joyce Miller

Heard: Written submissions were received on June 12, 2012.

Appearances: Charles E. Gluckstein

Robert Kerkmann for Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Helen Boti, was injured in a motor vehicle accident on September 27, 2008. She applied for accident benefits from Motor Vehicle Accident Claims Fund (“MVAC Fund”), payable under the Schedule.¹ MVAC Fund disputed her claim for benefits. The parties were unable to resolve their disputes through mediation, and Ms. Boti applied for arbitration at the Financial Services Commission of Ontario (the “Commission”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issue in this motion is:

Pursuant to Rule 9.8 of the Dispute Resolution Practice Code (the “Code”)², should Gluckstein & Associates LLP be permitted to withdraw as solicitors of record for the Applicant, Ms. Boti?

Result:

Pursuant to Rule 9.8 of the Code, Gluckstein & Associates LLP is permitted to withdraw as solicitors of record for the Applicant, Ms. Boti.

This motion proceeded by way of written submissions and the affidavit of Charles Gluckstein. By letter faxed June 14, 2012, Mr. Kerkmann advised that MVAC Fund does not oppose the motion and has no submissions.

On July 3, 2012, Senior Arbitrator, Elizabeth Nastasi, wrote to the parties to confirm a telephone conversation on June 29, 2012, wherein she “…advised counsel that Arbitrator Miller had granted Applicant counsel’s motion seeking to be removed as counsel of record” and that I would confirm my decision in writing. The following are my formal reasons.

BACKGROUND:

The Commission records and the affidavit provide the following facts.

On November 17, 2008, an application for accident benefits was submitted to MVAC Fund.
MVAC Fund disputed Ms. Boti’s claim and an application for mediation was submitted to the Commission on April 12, 2010.
A mediation conducted on March 15, 2011 failed.
An application for arbitration was submitted to the Commission on March 21, 2011.
A pre-hearing was conducted at the Commission on November 22, 2011. The parties were unable to resolve their disputes and a four day preliminary issue hearing was scheduled for July 3 - 6, 2012 and an arbitration hearing was scheduled for January 21 - 24, 2013.

In his affidavit dated June 11, 2012, Mr. Gluckstein advised that: “There has been a breakdown of the lawyer-client relationship as a result of substantial difficulties in communication and difficulty locating the Insured/Applicant, Helen Boti; … As a result of these difficulties, Gluckstein & Associates LLP is no longer able to effectively represent the Insured/Applicant, Helen Boti, in this action as we are unable to obtain instructions or direction from her.”

FINDING:

After reviewing Mr. Gluckstein’s affidavit and supporting documents, as well as the Commission records, I am satisfied that there has been a breakdown in the solicitor-client relationship.

Accordingly, pursuant to Rule 9.8 of the Code, I find that Charles E. Gluckstein is permitted to withdraw as solicitor of record for the Applicant, Ms. Boti.

September 27, 2012

Joyce Miller

Arbitrator

Date