Neutral Citation: 2013 ONFSCDRS 129 FSCO A12-005834

BETWEEN:

RICHA 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 Mrs. Sharma

Issues:

The Applicant, Richa Sharma, was injured in a motor vehicle accident on June 19, 2009. She 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 Mrs. Sharma applied for arbitration on September 27, 2012, at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Bergel, Magence and Andrew Bergel were on record as the Applicant’s representative.

The issues in this hearing are:

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

Result:

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

EVIDENCE AND ANALYSIS:

Background:

On June 19, 2013, Mr. Bergel and Ms. Natalia Poliakova, a paralegal at Bergel, Magence, LLP. attended at a scheduled pre-hearing before me, at which time Mrs. 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 Mrs. Sharma an opportunity to obtain new counsel. A confirming letter of the termination of retainer by Bergel, Magence, was sent to Mrs. Sharma on June 28, 2013.

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, Richa Sharma. That motion, dated August 1, 2013, was delivered to FSCO and the Insurer by fax. It was served on Mrs. Sharma by regular mail to her last known address on that date.

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

On August 28, 2012, Mr. Stanley Razenberg, paralegal at Bergel Magence, sent a letter to Mrs. Sharma requesting information in advance of the pre-hearing discussion. In that letter, Mrs. Sharma was advised that, if information necessary to proceed with her case, and which had been repeatedly requested from her was not provided in advance of the pre-hearing, Andrew Bergel and Bergel Magence would seek to be removed as legal representatives of Mrs. Sharma in her matter.

On February 13, 2013, Mr. Bergel and Mr. Razenberg met by teleconference with Mrs. Sharma. At that time, Mr. Razenberg again advised that they had not received the material that was required in order to proceed with her case, and advised Mrs. Sharma that if the requested information was not provided within 2 weeks, they would be requesting that FSCO remove Mr. Bergel and Bergel Magence solicitors of record in this matter.

Despite these requests, as none of the requested information had been provided, on June 3, 2013 Mr. Bergel sent a letter to Mrs. 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 Mrs. Sharma.

A motion record was later properly served on all parties, which included an affidavit of Natalia Poliakova, explaining the circumstances which led to the material breakdown in communications between Mrs. Sharma and her representatives. The motion was by way of written submissions, served on all parties and received by FSCO on August 1, 2013.

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 terms as the adjudicator considers just.

Bergel, Magence and Andrew Bergel have provided written requests for withdrawal of their representation of Mrs. Sharma through their letter dated June 3, 2013. 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 Mrs. Sharma’s last known address and telephone number.

Conclusion:

As Mrs. Sharma has not provided written consent for the withdrawal of her 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 her 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 Mrs. Sharma’s representatives in this proceeding.

October 3, 2013

Alan Mervin Arbitrator

Date

Financial Services Commission of Ontario