Rajesh Sharma v. Royal & SunAlliance Insurance Company of Canada, 2013 ONFSCDRS 128

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 128

FSCO A12-005740

BETWEEN:

RAJESH SHARMA

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY

OF CANADA

Insurer

DECISION ON A MOTION

Before: Alan Mervin

Heard: August 26, 2013, in writing

Appearances: Andrew Bergel for Mr. Sharma

Peter Quansah for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Rajesh Sharma, was injured in a motor vehicle accident on June 19, 2009. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ Royal terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sharma applied for arbitration on September 12, 2012 at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Should Bergel, Magence LLP and Andrew Bergel be permitted to withdraw as the representatives for Rajesh Sharma in this proceeding?

Result:

Bergel, Magence LLP and Andrew Bergel are permitted to withdraw as the representatives for Rajesh Sharma in this proceeding.

EVIDENCE AND ANALYSIS:

Background:

On June 19, 2013, Mr. Andrew Bergel and Ms. Natalia Poliakova, a paralegal at Bergel, Magence, LLP, attended at a scheduled pre-hearing before me, at which time Mr. Sharma and defence counsel also attended. At that time, Mr. Bergel advised all parties that Bergel, Magence would be bringing a motion to be removed as solicitors of record, on the basis of a material breakdown in the solicitor-client relationship, and the pre-hearing was then adjourned, to allow Mr. Sharma to obtain new counsel.

On July 30, 2013 Bergel, Magence, LLP, Barristers and Solicitors, brought a motion, returnable in writing on August 26, 2013, seeking that they be permitted to withdraw as representatives for the Applicant, Rajesh Sharma. That motion was delivered to FSCO and the Insurer by fax on August 1, 2013, and sent to Mr. Sharma by regular mail to his last known address on that date.

Mr. Bergel had previously advised Mr. Sharma that he would seek to withdraw as his legal representative if Mr. Sharma did not provide the requested materials.

On August 9, 2012, Mr. Stanley Razenberg, a paralegal at Bergel, Magence, sent a letter to Mr. Sharma requesting information in advance of the pre-hearing discussion. In that letter, Mr. Sharma was advised that information necessary to proceed with his case, and which had been repeatedly requested, had not been provided. That information was required by the solicitors in advance of the pre-hearing. As it had not been forthcoming, Mr. Sharma was advised that Andrew Bergel and Bergel, Magence would request that they be removed as legal representatives of Mr. Sharma in his matter.

On February 21, 2013, Mr. Bergel and Mr. Razenberg met with Mr. Sharma. At that time, Mr. Razenberg again advised that they had not received the material that was required in order to proceed with Mr. Sharma’s case, and advised Mr. Sharma that if the requested information was not provided within 2 weeks, they would be requesting that Mr. Bergel and Bergel Magence be removed as solicitors of record in his matter.

Despite these requests, as none of the requested information had been provided, on June 3, 2013 Mr. Bergel sent a letter to Mr. Sharma, (the details of which are alleged to be privileged and confidential), confirming that they would be moving to remove Andrew Bergel and Bergel, Magence, LLP as lawyers of record.

Further, on June 3, 2013, Mr. Bergel faxed a letter to FSCO and the insurer’s lawyer advising of their intent to be removed as solicitors of record for Mr. Sharma.

A motion record was later served on all parties, which included an affidavit of Natalia Poliakova, explaining the circumstances which led to the material breakdown in communications between Mr. Sharma and his representatives.

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.

Bergel Magence and Andrew Bergel have provided written requests for withdrawal of their representation of Mr. Sharma through their letter dated June 3, 2013, and their Motion Record and covering letter was served on FSCO and the Insurer by Fax on August 1, 2013. The Applicant was served with the motion record by regular mail on August 1, 2013. The Affidavit in the Motion Record sets out Mr. Sharma’s last known address and telephone number.

Conclusion:

As Mr. Sharma has not provided written consent for the withdrawal of his legal representatives from the record, based on the submissions at the pre-hearing on June 19, 2013, and the materials provided in the motion record, and together with the continued refusal or inability of the Applicant to provide the material requested by his counsel, I conclude that there has been a material breakdown in the solicitor-client relationship.

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 Andrew Bergel and Bergel, Magence LLP have complied with the provisions of the Code and that is appropriate to permit them to withdraw as Mr. Sharma’s representatives in this proceeding.

October 3, 2013

Alan Mervin

Arbitrator

Date