Meaghan Hart v. Royal & SunAlliance Insurance Company of Canada, 2013 ONFSCDRS 105

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

Neutral Citation: 2013 ONFSCDRS 105

FSCO A12-004428

BETWEEN:

MEAGHAN HART

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

MOTION DECISION

Before: Anne Sone

Heard: By telephone conference call on July 5, 2013.

Appearances: Nigel D’Souza for Ms. Hart Stacey Iordanis for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Meaghan Hart, was injured in a motor vehicle accident on November 23, 2010. She applied for statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Hart applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On July 5, 2013, Aaron Waxman and Associates Professional Corporation Barristers and Solicitors (Waxman and Associates) brought a motion seeking that they be permitted to withdraw as representatives for the Applicant, Meaghan Hart.

The issue is:

Should Aaron Waxman and Associates Professional Corporation Barristers and Solicitors be permitted to withdraw as the representatives for Meaghan Hart in this proceeding?

Result:

Aaron Waxman and Associates Professional Corporation Barristers and Solicitors are permitted to withdraw as the representatives for Meaghan Hart in this proceeding.

EVIDENCE AND ANALYSIS:

Background:

On August 22, 2011, Mr. Nigel D’Souza of Waxman and Associates sent a letter to the Commission, which was copied to Royal and to Ms. Hart. In it, he requested that Waxman and Associates be removed as legal representatives of Ms. Hart due to a breakdown of the solicitor-client relationship. He also provided her last known address.²

A pre-hearing in this matter was scheduled for June 5, 2013, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario. The Commission sent a Notice of Pre-Hearing Discussion dated November 26, 2012 to Ms. Hart at her last known address. Ms. Hart did not attend the pre-hearing as indicated in my pre-hearing letter dated June 7, 2013. I also attempted to reach her by telephone, but there was no answer, and the voice mail was not initialized.

At that time, Mr. D’Souza requested a date for a motion for Waxman and Associates to be removed as representatives for Ms. Hart. A motion date of July 5, 2013 was selected. The Commission sent a Notice of Motion dated June 27, 2013 to Ms. Hart. Waxman and Associates served its Motion Record on all parties, as confirmed by Affidavits of Service dated June 13, 2013.³

Law:

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.

Conclusion:

Waxman and Associates have provided written requests for withdrawal of their representation of Ms. Hart through their letter dated August 22, 2011 and their Motion Record served on all parties to the proceeding on June 13, 2013. The Affidavit in the Motion Record sets out Ms. Hart’s last known address and telephone number.

Due to the inability to reach Ms. Hart, and her failure to respond to notices and letters regarding her 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 Waxman and Associates to obtain Ms. Hart’s consent to their withdrawal as her 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 Waxman and Associates have complied with the provisions of the Code and that is appropriate to permit Waxman and Associates to withdraw as Ms. Hart’s representatives in this proceeding.

August 12, 2013

Anne Sone Arbitrator

Date