Abdul Basir v. State Farm Mutual Automobile Insurance Company, 2014 ONFSCDRS 21

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

Neutral Citation: 2014 ONFSCDRS 21

FSCO A12-003751

BETWEEN:

ABDUL BASIR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Alan Mervin

Heard: In person on November 8, 2013 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Neritan Ciraku for Mr. Basir Jonathan Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

Should Ciraku Law Office be permitted to withdraw as the representatives for Abdul Basir in this proceeding?
Should the Applicant be ordered to produce to the Insurer a copy of all agreed upon productions as described in Schedule “A” of the Notice of Motion?
Should the Applicant be ordered to pay the expenses of this motion?

Result:

Ciraku Law Office is permitted to withdraw as the representatives for Abdul Basir, on the following conditions;

(a) all outstanding productions in the Applicant’s possession be provided to the Insurer by November 20, 2013; and

(b) all documents received as a result of prior requests made pertaining to outstanding agreed production requests be delivered to the Insurer upon receipt of same.

The issue of expenses is deferred to the hearing Arbitrator.

EVIDENCE AND ANALYSIS:

The Applicant, Abdul Basir, was injured in a motor vehicle accident on May 12, 2010. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Basir applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion was held before me in this matter on April 22, 2013. Counsel for the Insurer, counsel for the Applicant, and the Applicant attended the pre-hearing. At that time, Mr. Ciraku, on behalf of the Applicant, indicated that he was having difficulty in obtaining productions and receiving instructions from his client, which were necessary in order to proceed to arbitration.

At the pre-hearing, counsel for the Insurer advised that many of the required productions had not been received. The outstanding requests were agreed upon, and the Applicant agreed to produce the outstanding documents and/or information in his possession, and make best efforts to obtain third party productions as agreed.

Since the time of the pre-hearing, the Applicant has not provided the agreed upon productions. The Insurer subsequently brought a motion requesting an order that the Applicant produce to it, a complete copy of all outstanding productions agreed upon at the pre-hearing. The list of outstanding productions was contained in Schedule “A” of the Notice of Motion, which was to be heard on November 8, 2013.

Mr. Ciraku also brought a motion seeking an order permitting Ciraku Law Firm to withdraw as representatives for the Applicant. Mr. Ciraku has been unable to contact Mr. Basir since the pre-hearing. That motion was sent to the Insurer on October 8, 2013, to Mr. Basir by regular mail to his last known address on that date, was received by FSCO on October 16, 2013 and was to be heard at the same time as the Insurer’s motion.

Mr. Basir did not attend the motion. Both counsel were in attendance. Mr. Ciraku argued that he was unable to comply with the undertakings given to produce many of the requested documents as he was not able to contact his client, nor receive instructions despite having written to his client on several occasions.

An affidavit filed in support of the motion to withdraw advised that letters were sent to two employers for which the Applicant had supplied contact information to his representative; one letter was returned because the address provided was incorrect, the other letter indicated that they had no record of Mr. Basir. In addition, two letters were sent to Mr. Basir, dated August 16, 2013 and September 18, 2013 respectively, requesting that Mr. Basir contact his representative. Those letters went unanswered. The August 16 letter advised that the Applicant should retain new counsel as Mr. Ciraku could not proceed in the absence of instructions, and would be filing a motion to be removed from the record.

At the hearing of the motion, Mr. Ciraku advised that he had been unable to contact his client since the pre-hearing in April.

The Insurer presented the list of outstanding agreed upon productions. The Insurer was opposed to Mr. Ciraku’s withdrawal, unless certain conditions were imposed regarding production of the outstanding documents. Mr. Ciraku agreed to provide all documents on Schedule “A” of the Notice of Motion in his possession by November 20, 2013, and forward to the Insurer any documents that had been agreed upon, which he might receive in the future due to outstanding requests already made but not yet answered.

The Insurer was satisfied with this agreement, and did not object to Mr. Ciraku’s withdrawal, so long as the agreed upon production conditions were contained in the order to issue, and forthcoming.

On November 8, 2013, Mr. Ciraku wrote to the Insurer confirming that he had provided all documents in his possession, and this letter was copied to the Commission.

Ciraku Law Office is therefore permitted to withdraw as representative for the Applicant.

EXPENSES:

The Issue of expenses is deferred to the hearing Arbitrator.

February 12, 2014

Alan Mervin Arbitrator

Date