Atashbar v. Wawanesa Mutual Insurance Company, 2012 ONFSCDRS 51

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

Neutral Citation: 2012 ONFSCDRS 51

FSCO A11-000840

BETWEEN:

SAAMAAN ATASHBAR

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

MOTION

Before: Joyce Miller

Heard: February 15, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Ajwinder Chata, Student at Law

Derek Yap for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Saamaan Atashbar, was injured in a motor vehicle accident on September 3, 2009. He applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ Wawanesa disputed his claim for benefits. The parties were unable to resolve their disputes through mediation, and Mr. Atashbar 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 Barry A. Edson be permitted to withdraw as solicitor of record for the Applicant, Mr. Atashbar?

Result:

Pursuant to Rule 9.8 of the Dispute Resolution Practice Code, Barry A. Edson is permitted to withdraw as solicitor of record for the Applicant, Mr. Atashbar.

BACKGROUND:

This motion preceded by way of oral submissions by Ajwinder Chatha, a Student at Law, affidavit evidence by Lucy Marta Pertili, a licensed paralegal, both working with The Law Offices of Barry A. Edson and the Commission file of records.

The Commission records and the affidavit provide the following facts.

Mr. Atashbar retained The Law Offices of Barry A. Edson on January 31, 2011 with respect to a motor vehicle accident which occurred on September 3, 2009.

On March 17, 2011, the Commission received an Application for Arbitration, dated March 4, 2011, filed by Mr. Edson on behalf of Mr. Atashbar.

The affidavit states that on August 17, 2011 Mr. Edson “… sent a letter to the Applicant’s last known address advising him to retain a new counsel and have the new counsel contact The Law Offices of Barry A. Edson to have the file transferred.”

A prehearing discussion in this case was held on October 31, 2011 at 2:00 p.m., at the offices of the Commission. Mr. Atashbar did not attend the pre hearing. Mr. Chatha appeared on behalf of Mr. Edson. He advised that he has attempted but has not been able to contact Mr. Atashbar. He further advised that Mr. Edson would be bringing a motion to get off the record.

In my prehearing letter, dated November 2, 2011 to Mr. Atashbar, I advised that his counsel would be presenting a Motion on December 1, 2011 to get off the record. In addition my letter also stated that an arbitration hearing in this case was scheduled for February 10, 2012.

On November 3, 2011, the Commission sent out a Notice of Motion to Mr. Atashbar’s address in the Commission’s file. The notice stated that the purpose of the motion is to determine whether Mr. Edson should be removed as solicitor of record. An administrative error was made and the notice indicated the February 10, 2012 date to deal with the motion to get off the record, instead of the arbitration hearing.³

Mr. Atashbar did not attend the motion hearing on February 10, 2012.

Mr. Yap who appeared on behalf of Wawanesa advised that Wawanesa is not objecting to the motion.

FINDING:

From the documentation on file, and the Affidavit of Service by Ajwinder Singh Chatha, dated January 20, 2012, I find that Mr. Atashbar was provided with proper notice of the Motion to determine whether Mr. Edson should be permitted to withdraw as solicitor of record for Mr. Atashbar. There is no indication in the file that Mr. Atashbar had advised the Commission of any change in his address. Nor is there any indication in the file that the Notice of Motion was returned to the Commission for failure to deliver. Accordingly, I find that Mr. Atashbar had ample notice of this Motion that his counsel was seeking to be removed as solicitor of record.

Rule 37.9 of the Dispute Resolution Practice Code (4th Edition) provides as follows:

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

After hearing oral submissions from Mr. Chatha, reviewing Ms. Pertili’s affidavit, 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 Barry A. Edson is permitted to withdraw as solicitor of record for the Applicant, Mr. Atashbar.

March 21, 2012

Joyce Miller

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario