James King v. Waterloo Insurance Company, 2013 ONFSCDRS 24

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 24

FSCO A10-003386

BETWEEN:

JAMES KING

Applicant

and

WATERLOO INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Anne Sone

Heard: December 14, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Harley Kruger for Mr. King

Issues:

The Applicant, James King, alleges he was injured in a motor vehicle accident on May 26, 2009. He applied for statutory accident benefits from Waterloo Insurance Company (“Waterloo”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. King applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended

The issue is:

Should Mazin Rooz Mazin be permitted to withdraw as the representative for Mr. James King?

Result:

Mazin Rooz Mazin is permitted to withdraw as the representative for Mr. James King in this proceeding.

EVIDENCE AND ANALYSIS:

Background:

A pre-hearing in this case was held on July 26, 2011, at 2:00 p.m. at the offices of the Financial Services Commission of Ontario. Mr. King attended the pre-hearing, and the arbitration hearing in this case was scheduled for April 30, May 1, 2 and 3, 2012.

Senior Arbitrator Philippe Rabot heard the case, which was completed on May 3, 2012. Unfortunately, he was unable to issue a decision.

A resumption of pre-hearing in this case was held on July 20, 2012, at 10:00 a.m., at the Commission. The purpose of the resumption was to attempt to settle this matter and/or set new dates for the hearing. Mr. King was sent a Notice of Resumption of Pre-Hearing Discussion, but did not attend.

A further resumption of pre-hearing was scheduled for August 24, 2012, at 3:00 p.m., by teleconference call. Mr. King was again sent a Notice of Resumption of Pre-Hearing Discussion.

In the meantime, between July 20 and August 24, 2012, Mazin Rooz Mazin made several attempts to contact their client, Mr. King, by telephone. However, Mr. King failed to respond to the telephone calls.²

On August 22, 2012, Mazin Rooz Mazin sent a letter to Mr. King requesting that he provide his counsel with instructions. Mazin Rooz Mazin received no response to this letter.³

Because of Mr. King’s failure to provide instructions, the resumption of pre-hearing scheduled for August 24, 2012 at 3:00 p.m., was cancelled. This was done at the request of Mazin Rooz Mazin, by letter dated August 24, 2012, sent by facsimile transmission.⁴

On August 30, 2012, Mazin Rooz Mazin sent a further letter to Mr. King requesting his instructions. Mazin Rooz Mazin has received no response to this letter.⁵

As a result, Mazin Rooz Mazin submits that Mr. King has been uncooperative, and that there has been a complete breakdown in the solicitor-client relationship. Mazin Rooz Mazin asks to be permitted to withdraw as the representative for Mr. King.

Mazin Rooz Mazin has provided the last known address and telephone number for Mr. King, and also proof that the Motion Record for this motion seeking permission to withdraw has been served upon Mr. King, at his last known address.⁶

Waterloo did not oppose this motion; nor did it send a representative to attend on it.

Law:

The Commission’s 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:

Mazin Rooz Mazin has provided a written request to withdraw its representation of Mr. King. It has done so through its Notice of Motion dated November 29, 2012, and the Motion Record which contains the Affidavit of Inna Ryzhkova dated November 29, 2012. There are Statements of Service which indicate that these documents have been served on all parties to the proceeding.

In addition, Mazin Rooz Mazin has provided reasons for its request for withdrawal, namely that Mr. King has been uncooperative, and that there has been a complete breakdown in the solicitor-client relationship.

After numerous attempts by telephone, and in writing, Mazin Rooz Mazin has not been able to obtain instructions from Mr. King. As a result, not only is it not possible for the law firm to obtain Mr. King’s instructions, it is also not possible for it to obtain Mr. King’s consent to its withdrawing as his representative.

In addition, Mazin Rooz Mazin has provided the last known address and telephone number of Mr. King. Under all these circumstances, I find that Mazin Rooz Mazin has complied with the provisions of the Code and that it is appropriate to permit it to withdraw as Mr. King’s representative in this proceeding.

February 19, 2013

Anne Sone

Arbitrator

Date