Fernando Vega v. Certas Direct Insurance Company, 2017 ONFSCDRS 177

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 177

FSCO A12-001531

BETWEEN:

FERNANDO VEGA

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Anne Sone

Heard: By telephone conference call on January 20, 2017.

Appearances: Fernando Vega did not attend

Kwaku Bona for Tkatch & Associates

David Murray for Certas Direct Insurance Company

Issues:

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

I conducted a hearing in this case and released a decision dated December 1, 2015, dismissing Mr. Vega’s claims for an income replacement benefit and a special award.

After Certas indicated that it would be seeking its expenses relating to this matter, the Applicant’s representative, Tkatch & Associates, advised that they intended to bring a Motion seeking to withdraw from this proceeding.

The issue in this motion hearing is:

Should Tkatch & Associates be permitted to withdraw as representatives for Fernando Vega?

Result:

Tkatch & Associates are permitted to withdraw as representatives for Fernando Vega.

Motion seeking Permission to Withdraw Representation

Tkatch & Associates provided Certas and the Commission with their Motion Record on December 7, 2016. Tkatch & Associates also provided the Commission with an Affidavit of Service dated December 13, 2016 stating that a copy of this Motion Record was served on Fernando Vega personally (at a different address than Tkatch & Associates had used previously).

On January 20, 2017, at 10:00 a.m., I commenced the motion hearing in this matter. I contacted Mr. Kwaku Bona of Tkatch & Associates, by telephone and attempted to reach Mr. Vega. Although I tried to reach him on two occasions, and left voice mail messages, I was unable to reach him by 10:30 a.m.

Through the Affidavit of Simmy Yu, sworn on December 5, 2016, Tkatch & Associates adduced evidence “that numerous attempts were made in an effort to contact Mr. Vega at his last known address and telephone number; however, it has been to no avail.”

The Affidavit states that on September 20, 2016, Mr. Kwaku Bona wrote a letter to Mr. Vega at his last known address advising him that Tkatch & Associates will be taking steps to remove themselves as his representatives on the basis that there has been a breakdown of communication between Tkatch & Associates and Mr. Vega. This letter was returned to its sender, as Mr. Vega had moved.

The Affidavit also states that there has been a complete breakdown in the lawyer-client relationship between Tkatch & Associates and Mr. Vega.

Certas had previously advised that it was taking no position with regard to this motion.

Law regarding a Motion to Withdraw Representation:

The Dispute Resolution Practice Code sets out at Rule 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:

Tkatch & Associates have provided a written request for withdrawal of their representation of Mr. Vega through their Motion Record. The Affidavit of Service also sets out Mr. Vega’s last known address. His telephone number seems to be operational, since I was able to leave voice mail messages on it.

Tkatch & Associates were unable to communicate with Mr. Vega. He also did not respond to the Motion Record or my telephone calls regarding this motion. Based on the foregoing, I am satisfied that there has been a complete breakdown in the solicitor-client relationship. In addition, Tkatch & Associates have been unable to obtain Mr. Vega’s consent to the withdrawal of Tkatch & Associates as his representatives.

Under section 9.1(c) of the Code, parties must provide the Dispute Resolution Group (“DRG”) with written notice of change to their address or telephone number. The DRG is entitled to rely on their last known address and telephone number. Under all these circumstances, I find that Tkatch & Associates have complied with the provisions of the Code, and that it is appropriate to permit them to withdraw as Mr. Vega’s representatives in this proceeding.

June 22, 2017

Anne Sone

Arbitrator

Date