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

Neutral Citation: 2013 ONFSCDRS 103

FSCO A11-003727

BETWEEN:

VI KY CHAU

Applicant

and

TD HOME AND AUTO INSURANCE COMPANY

Insurer

Before: Anne Sone

Heard: June 7, 2013, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario

Appearances: Darryl Singer for Mr. Chau Wendy Breuer for TD Home and Auto Insurance Company

Issues:

The Applicant, Vi Ky Chau, claims to have been injured in a motor vehicle accident on January 24, 2009. He applied for statutory accident benefits from TD Home and Auto Insurance Company (“TD Home”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Chau applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, for non-earner, attendant care, housekeeping and various medical benefits.

On June 7, 2013, Darryl Singer, on behalf of Yeung and Associates, brought a motion seeking that they be removed as solicitors of record for the Applicant, Vi Ky Chau. TD Home brought a motion to dismiss Mr. Chau’s claims for accident benefits.

The issues are:

Should Yeung and Associates be permitted to withdraw as the representatives for Vi Ky Chau in this proceeding?
Should Mr. Chau’s Application for Arbitration be dismissed?
Is either party entitled to its expenses of this proceeding?

Result:

Yeung and Associates are permitted to withdraw as the representatives for Vi Ky Chau in this proceeding.
Mr. Chau’s Application for Arbitration is dismissed.
TD Home is entitled to its expenses of $750.

EVIDENCE AND ANALYSIS:

Background:

On February 16, 2011, Wonder Kang, a law clerk with Yeung and Associates discovered that Mr. Chau had left Canada, and was in Vietnam. She communicated with him by telephone. Between August and December 2011, Yeung and Associates made repeated attempts to contact Mr. Chau, and received a new address on October 25, 2011.

On January 3, 2013, Mr. Chau stated to Yeung and Associates that he could not confirm his attendance for his pre-hearing. He did not answer subsequent telephone calls in February, April and May of 2013, regarding his attendance at his pre-hearing.

A pre-hearing in this matter was originally scheduled for January 17, 2013, but was re-scheduled to February 19, 2013. Mr. Singer, on behalf of Mr. Chau requested an adjournment of the February 19, 2013 pre-hearing to May 10, 2013 because, as mentioned above, Yeung and Associates were unable to contact Mr. Chau.

On May 10, 2013, on the consent of all the parties, Arbitrator Renahan adjourned the pre-hearing to June 7, 2013, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario. In a letter dated May 10, 2013, Arbitrator Renahan stated as follows:

If Mr. Chau does not appear on June 7, 2013, the Insurer indicated that it will ask for an order dismissing this Application for Arbitration.

On May 14, 2013, the Commission sent Notice of Motion, for an Order compelling dismissal of this Application for Arbitration, if Mr. Chau did not appear at the Motion. On May 17, 2013, TD Home served a Motion Record on all the parties, seeking dismissal of Mr. Chau’s Application for Arbitration. On June 4, 2013, Yeung and Associates served a Motion Record seeking to withdraw their representation of Mr. Chau. In it, they claimed that there had been a breakdown of the solicitor-client relationship. The Motion Record also provided Mr. Chau’s last known address.

Despite all the notices, Mr. Chau failed to attend on June 7, 2013.

Law regarding Motion to Withdraw Representation:

The Dispute Resolution Practice Code (Fourth Edition –Updated August 2011) (the “Code”) sets out at Rules 9.7 and 9.8 what a representative who seeks to withdraw from a proceeding must do. The representative must provide the following:

(a) a written request for withdrawal, with reasons, to the Dispute Resolution Group and all parties to the proceeding;

(b) the last known address, telephone number and electronic transmission address (if any) of the represented party.

If the represented party does not provide written consent to the representative’s request for withdrawal, an adjudicator may permit the representative to withdraw, subject to such terms as the adjudicator considers just.

Law regarding Dismissal of a Proceeding without a Hearing:

Rule 68.1 of the Code provides that an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith.

Conclusions:

Yeung and Associates have provided a written request for withdrawal of their representation of Mr. Chau through their Motion Record served on all parties to the proceeding on June 4, 2013.² The Motion Record sets out Mr. Chau’s last known address.

Due to the inability to reach Mr. Chau, and his failure to respond to notices and telephone calls regarding his pre-hearing and this motion, I conclude that there has been a breakdown in the solicitor-client relationship. In addition, it is also impossible for Yeung and Associates to obtain Mr. Chau’s consent to their withdrawal as his representatives.

Under section 9.1(c) of the Code, parties must provide the Dispute Resolution Group with written notice of any change to their address or telephone number. The Dispute Resolution Group is entitled to rely on their last known address and telephone number. Under all these circumstances, I find that Yeung and Associates have complied with the provisions of the Code and that is appropriate to permit Yeung and Associates to withdraw as Mr. Chau’s representatives in this proceeding.

Mr. Chau has been sent numerous notices regarding this proceeding, including a letter dated May 10, 2013 from Arbitrator Renahan warning him that if he does not appear, the Insurer will ask for an order dismissing his Application for Arbitration. Pursuant to Rule 68.1 of the Code, an adjudicator may dismiss a proceeding without a hearing where the proceeding is frivolous, vexatious or is commenced in bad faith. In light of the warning in Arbitrator Renahan’s letter of May 10, 2013, and Mr. Chau’s failure to respond, it appears that Mr. Chau has abandoned this case. As a result, I find that the proceeding is frivolous, vexatious or commenced in bad faith. Accordingly, I grant TD Home’s motion for an order dismissing Mr. Chau’s Application for Arbitration.

EXPENSES:

TD Home was completely successful in this case and requested its expenses. Since Mr. Chau’s non-responsiveness necessitated attendances at two pre-hearings, and this motion, I fix expenses at $750.

August 12, 2013

Anne Sone Arbitrator

Date