Brunarajan Balendra v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2012 ONFSCDRS 18

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

Neutral Citation: 2012 ONFSCDRS 18

FSCO A08-002455

BETWEEN:

BRUNARAJAN BALENDRA

Applicant

and

SECURITY NATIONAL INSURANCE CO./ MONNEX INSURANCE MGMT. INC.

Insurer

MOTION DECISION

Before: Fred Sampliner

Heard: By telephone conference call on February 17, 2012

Appearances: Marko Djukic for Mr. Balendra Amanda Lennox for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

Mr. Brunarajan Balendra’s claims for accident benefits under the Schedule¹ were dismissed by an appeal order of September 2, 2011. Security National Insurance Co./Monnex Insurance Mgmt. Inc. (“Security National”) thereafter requested an order that Mr. Balendra pay the Company’s expenses of this arbitration. I scheduled due dates for the parties’ submissions on the expense issue, and shortly thereafter Mr. Balendra’s lawyers asked to be removed as his legal representative.

The issues in this hearing are:

Should Mazin Rooz Mazin be removed as Mr. Balendra’s legal counsel?

Result:

Mazin Rooz Mazin shall remain as Mr. Balendra’s lawyers, and shall file his reply submissions to Security’s expense claim on or before 5 p.m. Friday March 2, 2012.

EVIDENCE AND ANALYSIS:

The law firm of Mazin Rooz Mazin contends that it has been unable to obtain instructions from Mr. Balendra, that he is uncooperative and that their solicitor/client relationship has broken down. Mr. Balendra did not provide consent for removal of the law firm as his representative², did not respond in writing to this Motion or make himself available by telephone to participate in this Motion. I telephoned the number Mr. Balendra provided to this Commission during the hearing of this Motion and left him a detailed message. He did not return my call.

Mr. Balendra’s law firm filed an affidavit and documents to support that they telephoned and wrote their client requesting consultation following the issuance of the final appeal order. I accept the evidence that Mr. Balendra has not responded to the law firm’s written and verbal attempts to communicate with him from September 2011 through January 2012.

On February 9, 2012, Mr. Balendra talked by telephone with Mr. Djukic, a lawyer at the firm. Mr. Djukic explained that Mr. Balendra avoided substantive discussion of Security’s expense motion and did not appear to understand the nature of the risk. Mr. Balendra promised to call Mr. Djukic back to have further discussions, but did not do so. On the basis of this evidence, I find that communications between Mazin Rooz Mazin and Mr. Balendra have now deteriorated to the point where the law firm cannot obtain instructions from him or maintain his cooperation/ confidence in order to properly represent his interests.

Mr. Balendra would be unrepresented once Mazin Rooz Mazin is allowed to withdraw as his lawyer, leaving him exposed to Security’s expense claim without having filed his responsive submissions. He is, as I understand, not sophisticated or so financially well off to be able to hire new counsel to make his submissions at this end-stage of the proceeding.

The commentary to Rule 2.09 of The Rules Professional Conduct states “the governing principle is that a lawyer should protect the client’s interests to the best of the lawyer’s ability and should not desert the client at a critical stage of a matter or at a time when a withdrawal would put the client in a position of disadvantage or peril.” This Tribunal must take a dim view of late or critical stage withdrawals that leave a claimant exposed or significantly disadvantaged.

Mr. Balendra’s full exposure to Security’s expense claim for the arbitration and appeal is $13,512.61. This is not an inconsequential sum, and allowing his counsel to withdraw at this time would in my view bring the administration of justice at this Tribunal into disrepute by permitting his lawyer to desert him at a critical juncture.³ For the above reasons, I deny Mazin Rooz Mazin’s Motion, and the firm shall continue to represent him until completion of the expense issues. I extend the time for Mr. Balendra to file his reply submissions to Security’s expense claim in this arbitration to 5 p.m. Friday March 2, 2012.

EXPENSES:

I award no expenses of this Motion.

February 23, 2012

Fred Sampliner Date Arbitrator