Raquel Bustamante-Menjivar v. Unifund Assurance Company, 2013 ONFSCDRS 98

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 98

FSCO A12-001253

BETWEEN:

RAQUEL BUSTAMANTE-MENJIVAR

Applicant

and

UNIFUND ASSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Anne Sone

Heard: April 5, 2013, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Alexander Mazin for Ms. Bustamante-Menjivar

Shirline Apiou for Unifund Assurance Company

Issues:

The Applicant, Raquel Bustamante-Menjivar, was injured in a motor vehicle accident on May 31, 2010. She applied for statutory accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Bustamante-Menjivar applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On April 5, 2013, Alexander Mazin brought a motion seeking that he be removed as solicitor of record for the Applicant, Raquel Bustamante-Menjivar. On that day, I permitted Mr. Mazin to withdraw as representative for Ms. Bustamante-Menjivar with written reasons to follow.

The issue is:

Should Alexander Mazin be permitted to withdraw as representative for the Applicant, Raquel Bustamante-Menjivar?

Result:

Alexander Mazin is permitted to withdraw as the representative for the Applicant, Raquel Bustamante-Menjivar.

EVIDENCE AND ANALYSIS:

Background:

Mr. Mazin filed the Affidavit of his assistant, Inna Ryzhkova, sworn March 12, 2013. This Affidavit sets out the circumstances of this motion.

The pre-hearing in this matter was originally scheduled for November 21, 2012. On September 20, 2012, Mr. Mazin’s office sent a letter to the Applicant advising her of the date and location of the pre-hearing discussion. In that letter, Mr. Mazin’s office informed her that she must attend the pre-hearing discussion, and requested that she confirm her attendance by telephone. The Applicant failed to contact Mr. Mazin’s office.

On November 1, 2012, Mr. Mazin’s office sent a second letter to the Applicant advising her of the date and location of the pre-hearing. Mr. Mazin’s office again informed her that she must attend, and requested that she confirm her attendance by telephone.

After both letters, Mr. Mazin’s office made several attempts to contact the Applicant by telephone. However, the Applicant failed to respond to the telephone calls.

Ms. Bustamante-Menjivar failed to attend the pre-hearing scheduled for November 21, 2012.

A resumption of pre-hearing was scheduled for April 5, 2013. On March 7, 2013, Mr. Mazin’s office sent a letter to the Applicant advising her of the date and location of the resumption of pre-hearing. In that letter, Mr. Mazin’s office informed her that she must attend, and requested that she confirm her attendance by telephone. Mr. Mazin’s office made several attempts to contact the Applicant again. However, the Applicant failed to respond again.

On March 12, 2013, Mr. Mazin’s office sent a letter to the Applicant’s last known address informing her that Mr. Mazin will proceed with a motion to get off the record.

Mr. Mazin has provided the Commission with the last known address and telephone number of the represented party, and a Statement of Service dated March 12, 2013, pertaining to its motion record.

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 reason, 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:

Mr. Mazin has provided a written request for withdrawal of his representation of Ms. Bustamante-Menjivar through his Notice of Motion and the Affidavit of Inna Ryzhkova to all parties to the proceeding. It served the motion record on Ms. Bustamante-Menjivar. The Affidavit of Ms. Ryzhkova sets out Ms. Bustamante-Menjivar’s last known address and telephone number.

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

After numerous attempts with correspondence and by telephone, Mr. Mazin has not been able to contact Ms. Bustamante-Menjivar. Further, she has not responded to notices and letters from the Commission regarding her pre-hearing and resumption of pre-hearing. As a result, it is impossible for Mr. Mazin to obtain Ms. Bustamante-Menjivar’s consent to his withdrawal as her representative.

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 Mr. Mazin has complied with the provisions of the Code and that it is appropriate to permit Mr. Mazin to withdraw as Ms. Bustamante-Menjivar’s representative.

August 1, 2013

Anne Sone

Arbitrator

Date