Mengistu Amanuel v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 282

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 282

FSCO A14-005135

BETWEEN:

MENGISTU AMANUEL

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Alan Mervin

Heard: August 25, 2017, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Alexander Tzaferis for Mr. Amanuel Mini (Manmeet) Kohli for State Farm Mutual Automobile Insurance Company Yafet Tadesse, appearing for Mr. Amanuel

Issues:

The Applicant, Mengistu Amanuel, alleged he was injured in a motor vehicle accident on July 14, 2012. 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 certain benefits and the parties were unable to resolve their disputes through mediation. Mr. Amanuel then applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Should Alexander Tzaferis and Tzaferis Personal Injury Lawyers be removed as the solicitors of record for this Arbitration?
Should State Farm be awarded its expenses of this motion?

Result:

Alexander Tzaferis and Tzaferis Personal Injury Lawyers are removed as solicitors of record for this Arbitration.
A decision on expenses of this motion is deferred until the conclusion of this arbitration.

EVIDENCE AND ANALYSIS:

Mr. Tzaferis served a motion record requesting that he and his firm be removed as solicitors of record. The motion was returnable at the same time as the hearing, which was set to proceed peremptorily, was to commence.

The Applicant did not appear at the hearing in person, but had sent his nephew, Yafet Tadesse, who advised that Mr. Amanuel could not appear, as he was not feeling well. I heard oral submissions from Mr. Tzaferis of Tzaferis Personal Injury lawyers, who was representing the Applicant.

Mr. Tzaferis, in his affidavit,² alleged a serious and irreparable breakdown in the solicitor-client relationship. Apparently, the Applicant had entered into a settlement two years ago, which was rescinded by the Applicant during the “cooling off” period. Subsequently, the Insurer had agreed to fund the claimed benefits, leaving only disbursements and expenses as the only issues remaining.

Mr. Tzaferis then advised that those issues had been resolved, leaving no remaining triable issues. According to his affidavit, he advised his client that, under circumstances where there are no triable issues remaining, a withdrawal of the application is in order.

The Applicant, however, refused to withdraw his application and would not instruct Mr. Tzaferis as to how to proceed, despite repeated written and oral requests to do so. Apparently, during the hearing of the motion, it became known that the Insurer had made an error with respect to past correspondence outlining the terms of the prior settlement agreement.

Although the Insurer quickly corrected that error in subsequent correspondence, and the settlement was ultimately rescinded, the Applicant still had misgivings and did not provide instructions as to how he wished to proceed. He did not respond to correspondence from Mr. Tzaferis requesting instructions.

Mr. Tadesse, on behalf of the Applicant, confirmed orally at the motion, that his uncle, Mr. Amanuel no longer wanted Mr. Tzaferis to represent him for this Arbitration.

Mr. Tzaferis then produced a letter from the Applicant, which expressly stated that the Applicant no longer wanted Mr. Tzaferis or his firm to represent him.

The Insurer opposed the motion on grounds of procedural fairness, submitting that if the Applicant wanted to retain new counsel, he could have made that request at an earlier date, instead until the commencement of the hearing.

However, based on the Affidavit submitted by Mr. Tzaferis and his oral submissions, I allowed the motion and ordered Mr. Tzaferis and his firm to be removed as solicitors of record, relying on Rules 9.7 and 9.8 of the Dispute Resolution Practice Code.³

In circumstances such as these, where the lawyer is no longer prepared to act and has no instructions as to how to proceed, and the Applicant no longer wants the lawyer to represent him, it is appropriate to order Mr. Tzaferis and his firm be removed as counsel of record.

The hearing then proceeded in the absence of the Applicant, but with his nephew speaking on his behalf.

EXPENSES:

The Insurer requested a lump sum for the motion, and the arbitration. I reserved on the issue of expenses of this motion. I will deal with the motion expenses at the conclusion of the arbitration hearing, as part of the final expense order.

October 30, 2017

Alan Mervin

Arbitrator

Date