Neutral Citation: 2012 ONFSCDRS 93 FSCO A10-002075

BETWEEN:

LINDA SHAW Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

MOTION

Before: Joyce Miller Heard: Written submissions were received on May 24, 2012.

Appearances: Michael L. Bennett for Ms. Shaw Philippa Samworth for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Linda Shaw, was injured in a motor vehicle accident on January 30, 2007. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm disputed her claim for benefits. The parties were unable to resolve their disputes through mediation, and Ms. Shaw applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

A pre-hearing was held on December 1, 2010. A hearing date was set for December 5, 6, 7, 8, 12, 13, 14 and 15, 2011. By a letter dated November 23, 2011, an adjournment of the hearing, on consent of the parties, was granted for July 3, 4, 5, 9, 10, 11, 12, 17, 18 and 19, 2012.

The issues in this motion are:

Pursuant to Rule 9.8 of the Dispute Resolution Practice Code, should the firm of Thomson Rogers be permitted to withdraw as solicitors of record for the Applicant, Ms. Shaw?
Should the hearing scheduled to commence on July 3, 2012 be adjourned?

Result:

Pursuant to Rule 9.8 of the Dispute Resolution Practice Code, the firm of Thomson Rogers is permitted to withdraw as solicitors of record for the Applicant, Ms. Shaw.
The hearing scheduled to commence on July 3, 2012 is adjourned peremptory to both parties to July 8, 9, 10, 11, 15, 16, 17, 18, 22 and 23, 2013.

THE LAW

Rule 9.8 of the Dispute Resolution Practice Code provides that an adjudicator may permit withdrawal of a representative from a proceeding, subject to such terms as the adjudicator considers just.

BACKGROUND

On May 22, 2012, Mr. Michael Bennett wrote to the Commission, with a copy to Ms. Philippa Samworth, requesting that he and his firm, Thomson Rogers, be removed as solicitors of record for Ms. Shaw.

In his letter Mr. Bennett advised that on March 29, 2012 and April 26, 2012 he received privileged correspondence (and specifically does not waive any aspect of solicitor-client and/or litigation privilege relating to same) from Ms. Shaw wherein he concluded that he could no longer continue to represent Ms. Shaw. He further advised that on May 9, 2012, Thomson Rogers discontinued its representation of Ms. Shaw by letter and e-mail.

On May 24, 2012, Ms. Samworth wrote to the Commission and Mr. Bennett advising that State Farm was taking “no position” with respect to Mr. Bennett’s request to be removed as solicitor of record. However, she expressed “urgent notice” be provided as to whether the July 3, 2012 hearing would be proceeding or whether Ms. Shaw would be asking for an adjournment. Her concern was whether or not she should be preparing for a case that may not proceed.

I instructed the Commission’s Manager, Admin & Support Services (Arbitration), Hanan Dagher, to contact all the parties to confirm as to whether there was consent by the Applicant to the withdrawal of Mr. Bennett and Thomson Rogers as solicitors of record and confirm whether there is agreement on an adjournment date.

The Commission’s file shows that on May 28, 2012, Ms. Shaw confirmed her consent for Mr. Bennett and Thomson Rogers to withdraw as solicitors of record.

The parties, also on consent, agreed that the hearing would be adjourned to July 8, 9, 10, 11, 15, 16, 17, 18, 22 and 23, 2013.

FINDINGS

After reviewing the Commission’s file and correspondence from counsel, 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 Mr. Bennett and the firm of Thomson Rogers are permitted to withdraw as solicitors of record, without terms.

The hearing scheduled to commence on July 3, 2012 is adjourned peremptory to both parties to July 8, 9, 10, 11, 15, 16, 17, 18, 22 and 23, 2013.

June 8, 2012

Joyce Miller Arbitrator

Date

Financial Services Commission of Ontario