Neutral Citation: 2012 ONFSCDRS 29

FSCO A08-001537

BETWEEN:

MICHAEL VIEIRA

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION ON A MOTION

Before: Arbitrator Denise Ashby

Heard: Written submissions concluded on March 2, 2012

Appearances: Bob Crosbie for Mr. Vieira James M. Brown for Aviva Canada Inc.

Issues:

The Applicant, Michael Vieira, was injured in a motor vehicle accident on October 14, 2006. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ Aviva terminated certain benefits and denied others. The parties were unable to resolve their disputes through mediation. Ultimately an Arbitration hearing was concluded and on December 2, 2011, I issued a decision denying Mr. Vieira's claim for benefits. Aviva applied for an Expense Hearing and KLC Law Firm subsequently brought this motion to be removed as Mr. Vieira's representative pursuant to the Dispute Resolution Practice Code.

The issues in this hearing are:

Should the firm of KLC Law Firm be removed as Michael Vieira's representatives of record pursuant to Rule 9.8 of the Dispute Resolution Practice Code?
Is a further adjournment of the Expense Hearing required to permit Mr. Vieira time to retain a representative and make submissions in respect of the Expense Hearing?

Result:

The firm of KLC Law Firm is removed as Michael Vieira's representative of record.
No further adjournment of the Expense Hearing is required. The Expense Hearing is concluded and a decision on expenses is pending.
Mr. Vieira shall be served at the address provided by his former representative.

CHRONOLOGY:

On January 5, 2012, the Commission issued a Notice of Expense Hearing in which Aviva was required to complete its submissions by January 27, 2012. Mr. Vieira was required to respond by February 10, 2012 and Aviva's submissions in reply were to be completed on February 17, 2012. This Notice was sent to Mr. Vieira's address which is contained in the Commission's records. There is no record that the Notice was returned to the Commission.

On January 27, 2012, Aviva's submissions were received.

On February 14, 2012, Aviva wrote to Mr. Crosbie, a paralegal and a member of KLC Law Firm (KLC), who is Mr. Vieira's representative of record. Aviva asked whether Mr. Vieira intended to respond to its submissions on expenses.

On February 15, 2012, Olga Leyenson, a licensed paralegal and a member of KLC wrote to the Commission advising that there had been a breakdown in communication and the firm had ceased to represent Mr. Vieira "on or about January 15, 2012." As well, the firm brought a motion to be removed from the record pursuant to Rule 9.7 of the DRPC.

On February 16, 2012, Aviva wrote advising that it did not take issue with KLC being removed from the record. However, Aviva noted that Mr. Crosbie had written a letter on January 20, 2012 which was after the "breakdown in the relationship between your firm and your client..."on January 15, 2012, the date referred to in Ms. Leyenson's letter.

In a letter dated February 21, 2012, I ordered a written motion with respect to KLC's request to be removed as Mr. Vieira's representative of record. The motion was scheduled to conclude on March 6, 2012. This letter was faxed to KLC and Aviva's representative and couriered to Mr. Vieira.

In addition, I required KLC, by February 24, 2012, to provide "an explanation of the discrepancy with respect to the timing of the breakdown in the representative and client relationship" and to courier to Mr. Vieira a copy of Aviva's submissions dated January 26, 2012.

I also ordered Mr. Vieira, by March 2, 2012, to provide either a written objection, with his reasons, that KLC should not be removed as his representative or a notice of his intention to act on his own behalf.

On February 24, 2012, KLC filed its material relating to my order of February 21, 2012. Mr. Crosbie enclosed correspondence relating to both Aviva's claim for expenses and the breakdown in the representative and client relationship between KLC and Mr. Vieira. Also enclosed was a letter addressed to the Case Administrator dated February 1, 2012 which was purportedly faxed to the Commission. The letter sets out the basis upon which KLC was seeking to be removed from the record. There is no record that the Commission received a fax from KLC on February 1, 2 or 3rd, 2012. Similarly, Aviva wrote to KLC advising it had no record of receiving a copy of the letter KLC claimed was faxed to the Commission dated February 1, 2012 and requested a copy.

On February 24, 2012, the materials the Commission couriered to Mr. Vieira on February 21, 2012 were returned. The shipping record indicates that the delivery was refused by Michael Vieira on February 22, 2012.

On February 29, 2012, Aviva made a further request of KLC to provide a copy of the letter dated February 1, 2012, which was purportedly faxed to the Commission.

On March 1, 2012, Aviva confirmed receipt of the hard copy of the materials filed with the Commission by KLC on February 24, 2012. Aviva stated it had no further reply to those submissions. As well, Aviva advised that: "We do note that the enclosures that you have provided also contain a second letter dated February 15, 2012 from Ms. Leyenson addressed solely to the undersigned. As with the correspondence of February 1, 2012, we have no record of ever receiving this correspondence."

REASONS:

KLC Law Firm seeks to be removed as Mr. Vieira's representative of record in respect of the Expense Hearing on the basis that Mr. Vieira has lost confidence in the firm's ability to represent him. As a consequence, the Expense Hearing scheduled to conclude on February 17, 2012, was adjourned to March 6, 2012.

Removal from the Record:

Rule 9.8 of the Dispute Resolution Practice Code (DRPC) provides:

Where the party represented provides written consent to the representative's request for withdrawal, the Registrar or an adjudicator shall permit the representative's withdrawal. Otherwise, an adjudicator may permit the representative to withdraw, subject to such terms as the adjudicator considers just.

I continue to have concerns that neither Mr. Crosbie nor Ms. Lyenson appreciate that they and their firm have not ceased to represent a client in proceedings, where they are on record whether those proceedings are before the courts or administrative law matters, until there is an order of a judge or adjudicator permitting them to withdraw and removing them from the record. While this may be troubling, such concerns cannot interfere with determining whether there has been a breakdown in the representative and client relationship such that Mr. Crosbie and the firm should be removed from the record as Mr. Vieira's representatives.

Mr. Vieira refused delivery of the Commission's letter dated February 21, 2012 and has not provided either his objection to KLC being removed as his representative of record or his notice that he wishes to act in person. Included in the materials filed by KLC on February 24, 2012 is a letter to Mr. Vieira dated January 25, 2012 signed by Mr. Crosbie. He wrote: "As you no longer want us representing you this should be our last communication." Mr. Crosbie reminded Mr. Vieira that his response to Aviva's submissions with respect to the Expense Hearing was due on February 10, 2012.

The letter of January 25, 2012 indicates that Mr. Vieira advised KLC he wished to terminate their retainer. I am satisfied that there has been a breakdown in the representative and client relationship such that KLC Law Firm should be permitted to withdraw and be removed as Mr. Vieira's representative of record in these proceedings, pursuant to Rule 9.8 of the DRPC.

Further Adjournment:

Rule 7.3 of the DRPC provides that a document served by parties or delivered by the Commission by regular, registered or certified mail, service or delivery takes place on the fifth day after the post office stamps the document. I find that Mr. Vieira was served with the Notice of Expense Hearing dated January 5, 2012 on or about January 12, 2012.

I adjourned the Expense Hearing to March 6, 2012 to permit Mr. Vieira time to deal with the issue of his representation and his response to Aviva's submissions. Mr. Vieira refused delivery of the Commission's letter dated February 21, 2012. Mr. Vieira has not responded to Aviva's submissions in respect of the Expense Hearing notwithstanding he received the Notice issued by the Commission and was advised by Mr. Crosbie that his submissions were due on February 10, 2012. Mr. Vieira has not contacted the Commission to seek an extension of time for filing his response.

Parties to proceedings at the Commission are expected to update the Commission's records if there is a change in contact information. I accept that the address provided by KLC is Mr. Vieira's current address and therefore service or delivery of documents can be made at that address.

Parties to proceedings have an obligation to participate. The Notice of Expense Hearing dated January 5, 2012, stated: "If you or your representative do not participate, the Arbitrator may proceed with the assessment without your participation and you will not be entitled to any further notice in the proceeding."

Mr. Vieira has taken no steps since late January, when it was apparent there were problems between himself and his representative, to participate in the Expense Hearing. Additional time was provided for Mr. Vieira to respond to Aviva's submissions filed on January 27, 2012. I have no basis to believe that a further adjournment will result in his participation. As a consequence no further adjournment will be given.

As Mr. Vieira has not provided his submissions in response, there is no need for Aviva to make submissions in reply and the written Expense Hearing is concluded. I will issue a Decision in respect of expenses in due course.

March 9, 2012

Denise Ashby Arbitrator

Financial Services Commission of Ontario