Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 15

FSCO A10-003864

BETWEEN:

AHMAD ABBANY

Applicant

and

PAFCO INSURANCE COMPANY

Insurer

Before: Joyce Miller

Heard: Written submissions were received by February 14, 2012.

Appearances: David Share

Eric Grossman for Pafco Insurance Company

Issues:

The Applicant, Ahmad Abbany, was injured in a motor vehicle accident on July 14, 2007. He applied for and received statutory accident benefits from Pafco Insurance Company (“Pafco”), payable under the Schedule.¹ Pafco denied his income replacement benefit claim as well as his claims for medical benefits and cost of examinations. Pafco claims housekeeping and attendant care benefits were paid and later terminated on September 28, 2009 and October 31, 2009 respectively. The parties were unable to resolve their disputes through mediation, and Mr. Abbany applied for arbitration at the Financial Services Commission of Ontario 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,² should David Share and the firm of David Share and Associates be permitted to withdraw as solicitors of record for the Applicant, Mr. Abbany?

Result:

Pursuant to Rule 9.8 of the Dispute Resolution Practice Code, David Share and the firm of David Share and Associates is permitted to withdraw as solicitors of record for the Applicant, Mr. Abbany.
Mr. Abbany is to comply with the following terms:

Pursuant to Rules 9.5 and 9.6 of the Dispute Resolution Practice Code Mr. Abbany shall provide Pafco written notification as to whether he intends to continue with the arbitration and whether he intends to act on his own behalf or retain new representation. This notification shall be provided by March 2, 2012.

Mr. Abbany shall provide the productions requested by Pafco by April 15, 2012, or proof of best efforts to obtain these productions.

The Preliminary Issue by written submissions is adjourned to the following timetable:

Submissions from Pafco due June 15, 2012

Response from Mr. Abbany due July 17, 2012

Reply from Pafco due July 31, 2012

BACKGROUND

This motion proceeded by written submissions, affidavit evidence by Mr. David Share and the Commission file of records. These documents provide the following facts:

On May 12, 2009, David Share Associates was retained by Mr. Abbany, to pursue a claim against Pafco for Statutory Accident Benefits.

On behalf of Mr. Abbany, Mr. Share filed an Application for Mediation on December 7, 2009. The mediation, on September 16, 2010 failed and an Application for Arbitration was filed on December 9, 2010.

A prehearing was held on July 6, 2011. At the prehearing a Preliminary Issue was set for written submissions to commence on February 29, 2012 and end on April 13, 2012. A hearing was scheduled for November 5 to 8, 2012.

On December 19, 2011, an associate of David Share Associates, Ms. Shira C. Bernholtz wrote to the Commission advising that the firm of David Share Associates was requesting to be removed as solicitors of record for Mr. Abbany.

A Motion brief was received by the Commission on January 27, 2012 which included Mr. Share’s affidavit dated January 10, 2012. The affidavit with supporting documentation claimed “an irretrievable breakdown in the relationship between solicitor and client.”

On February 14, 2012, counsel for Pafco, Mr. Eric Grossman, wrote to the Commission with a copy to Mr. Abbany and Ms. Bernholtz. Mr. Grossman advised that while Pafco did not object to Mr. Share being removed as solicitor of record, Pafco, however, was requesting that the withdrawal be done with the following terms:

Mr. Abbany must provide written notification that he is continuing with the within arbitration. Further he must provide written notification that he is acting on his own behalf or provide written proof of new representation by March 2, 2012 as per Rules 9.5 and 9.6 of the Dispute Resolution Practice Code
Mr. Abbany must provide the requested productions by April 15, 2012, or proof of best efforts to obtain same.
With respect to the preliminary issue hearing and given the outstanding productions, the following revision to the timetable is proposed:

Written Submissions from the insurer due June 15, 2012.

Response from the insured due July 17, 2012.

Reply from the insurer due July 31, 2012.

FINDING

From the documentation on file, and the Affidavit of Service by Mr. Volker Triebe dated December 21, 2011, I find that Mr. Abbany was provided with proper notice that David Share was bringing a motion to have himself and the firm of David Share Associates removed as solicitors of record.

After reviewing Mr. Share’s affidavit and the supporting documentation, 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 Dispute Resolution Practice Code, I find that David Share and the firm of David Share Associates are permitted to withdraw as solicitors of record.

In addition, I find that the terms requested by Pafco are reasonable in the circumstances of this case.

Accordingly, as a result of his counsel’s withdrawal as solicitor of record, I find that Mr. Abbany is to comply with the following terms:

(1) Pursuant to Rules 9.5 and 9.6 of the Dispute Resolution Practice Code Mr. Abbany shall provide Pafco written notification as to whether he intends to continue with the arbitration and whether he intends to act on his own behalf or retain new representation. This notification shall be provided by March 2, 2012.

(2) Mr. Abbany shall provide the productions requested by Pafco by April 15, 2012, or proof of best efforts to obtain these productions.

(3) The Preliminary Issue by written submissions is adjourned to the following timetable:

Submissions from Pafco due June 15, 2012.

Response from Mr. Abbany due July 17, 2012.

Reply from Pafco due July 31, 2012.

February 22, 2012

Joyce Miller

Arbitrator

Date