Neutral Citation: 2014 ONFSCDRS 96 FSCO A11-002155

BETWEEN:

HAWO HALANE Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Alan Mervin Heard: March 24, 2014 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Simmy Yu appearing for Ms. Halane Waheeda Ekhlas Smith appearing for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Hawo Halane, was injured in a motor vehicle accident on December 18, 2009. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes with respect to benefits through mediation, and Ms. Halane applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Tkatch and Associates, Ms. Halane’s representatives, have been unable to contact the Applicant for some time and have now brought a motion requesting that an order issue to remove them as counsel of record for Ms. Halane. They also request an order that service be effected to her last known mailing address, or by email to her last known email address.

The issues in this motion are:

Should Murray Tkatch and Tkatch and Associates Professional Corporation be permitted to withdraw as the representatives for Hawo Halane in this proceeding?

Result:

Murray Tkatch and Tkatch and Associates Professional Corporation are removed as solicitors of record for the Applicant Hawo Halane.

EVIDENCE AND ANALYSIS:

The initial pre-hearing discussion took place on June 22, 2012. Ms. Halane appeared at that time, and dates for the arbitration hearing, February 10-14, 2014, were set in the presence of the Applicant and her representative. It was also agreed that a preliminary issue hearing take place in advance of the main arbitration hearing. That matter was set to be heard February 19-21, 2013.

Prior to the preliminary issue hearing, her representative contacted FSCO and requested an adjournment of the hearing, on the basis that Ms. Halane was receiving medical treatment in Kuwait, and was not available to appear at the hearing. That request was opposed by State Farm. Arbitrator Bujold considered this request, and in his letter of February 8, 2013 granted the request to adjourn, on condition that the preliminary issue hearing be made peremptory on the Applicant when a new date was set, and that the Applicant provide proof that she was in Kuwait for medical reasons.

In June 2013, Mr. Kwaku Bona, of Tkatch and Associates, wrote to advise that he had been in contact with Ms. Halane, that she was still receiving treatment in Kuwait, and that she would be forwarding to him the medical proof that had been previously ordered by Arbitrator Bujold. According to Mr. Bona, he received that document on June 23, 2013, and apparently, since that time, despite repeated attempts in writing and by email to contact the Applicant, has lost contact with Ms. Halane.

On October 30, 2013, State Farm wrote requesting a resumption of pre-hearing to set out a timetable for the matter. A resumption of pre-hearing by teleconference was set for January 31, 2014.

From correspondence received from the Applicant’s representative, it appeared that they had again lost contact with Ms. Halane. On December 18, 2013, Mr. Bona wrote me and advised that Ms. Halane had been in Kuwait for over a year, and was currently residing there to the best of his knowledge.

The firm was requesting withdrawal as her representative on the basis of a breakdown in communications, as the firm had been unable to receive instructions.

However, as no motion had been brought for removal, and the Applicant had not been served in accordance with the Dispute Resolution Practice Code, I did not allow the request at that time.

At the resumption of pre-hearing by teleconference on January 31, 2014, the Applicant did not appear. Her representative at that time, Mr. Tkatch, advised that he was unable to contact her, and that the firm would be advancing a formal motion to be removed as counsel of record.

A motion to withdraw from the record was subsequently served on the Applicant at her last known address, and filed with FSCO. The attached affidavit of Mr. Bona, who had been appearing on her behalf, explained the circumstances, and cited an inability to contact the Applicant since June 2013, resulting in a breakdown of communications. This motion was to be heard on March 24, 2014 at FSCO, in advance of the commencement of the arbitration hearing in this matter on that date.

On March 24, 2014, Ms. Simmy Yu appeared on the motion and made oral submissions. Her request for removal was not opposed.

I am satisfied that the Applicant was properly served with this motion, and am satisfied that there has been a breakdown of communications between the Applicant and her representatives.

Murray Tkatch and Tkatch and Associates Professional Corporation are removed as solicitors of record for the Applicant Hawo Halane.

June 11, 2014

Alan Mervin Arbitrator

Date

Financial Services Commission of Ontario