Financial Services Commission of Ontario

Commission des services financiers de l'Ontario

Neutral Citation: 2017 ONFSCDRS 334

Appeal P16-00012

OFFICE OF THE DIRECTOR OF ARBITRATIONS

AGNIESZKA STEPIEN Appellant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC. Respondent

BEFORE: Edward Lee

REPRESENTATIVES: Ms. Stepien represented herself Security National Insurance Co./Monnex Insurance Mgmt. Inc. did not participate Selina Andrello for McLeish Orlando

HEARING DATE: December 15, 2017

DECISION ON A MOTION

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

The motion is granted. McLeish Orlando LLP is removed from the record as representative for Ms. Stepien.

December 19, 2017

Edward Lee Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE MOTION

This matter involves the SABS–1996.¹

This is a motion brought by McLeish Orlando LLP to be removed from the record as representative for Ms. Stepien, the Appellant.

Ms. Andrello attended at the motion for McLeish Orlando LLP. Ms. Stepien attended and spoke on her own behalf. The Respondent, Security National Insurance Co./Monnex Insurance Mgmt. Inc., ("Security"), did not attend or participate.

II. BACKGROUND

As noted, McLeish Orlando LLP requested to be removed from the proceeding as representative for Ms. Stepien, pursuant to Rule 9.8 of the Dispute Resolution Practice Code.

Where the party represented provides written consent to the representative's request for withdrawal, the Registrar or an adjudicator shall permit the representative's withdrawal. Otherwise, an adjudicator may permit the representative to withdraw, subject to such terms as the adjudicator considers just.

McLeish Orlando LLP has filed its motion record and provided contact information for Ms. Stepien. Ms. Stepien opposes the motion brought by McLeish Orlando LLP.

The grounds set out in the motion record filed by the McLeish Orlando LLP, include the following:

It has become apparent that there is has been a loss of confidence and a material breakdown in communications between McLeish Orlando and the Applicant.

At the motion, McLeish Orlando LLP supported its motion by filing an affidavit (at Tab 2 of its motion record) setting out the grounds for its contention that the solicitor-client relationship had broken down irretrievably.

Supplemental materials were also provided at the motion by McLeish Orlando LLP. At the request of both McLeish Orlando LLP and Ms. Stepien, I have ordered that these materials be sealed.

Ms. Stepien had previously provided a letter to me detailing her request that I not allow McLeish Orlando LLP to withdraw from the proceedings as her representative. Her letter was reproduced in the Motion Record at Tab B and includes the follow statement:

I was surprised by Mr. Brown statement [sic] that there has been a material breakdown in communications and in the solicitor-client relationship. I believe that this statement shifts the focus from the problems in my claims onto the lawyer-client interaction. I believe that as a client I have responsibility to inform my lawyer when I need additional information or have a concern about the case in order to work on resolutions. At the end of the day, the litigation outcome will only affect me.

III. ANALYSIS

At the motion before me, Ms. Stepien reiterated she wished to have McLeish Orlando LLP continue to represent her in this matter. She insisted that there had been no breakdown in communication between herself and her lawyer, and that she had not lost confidence in her lawyer's abilities to act on her behalf in this matter.

The question as to when a representative may withdraw a proceeding has been considered by FSCO and the Courts. It is clear the arbitrator has a discretionary power to permit such a withdrawal. Arbitral case law suggests that a determining factor to be considered when the motion is opposed by the client is whether the fundamental nature of the solicitor/client relationship has broken down.² Arbitrators have also permitted counsel to withdraw when there has been a demonstrated of a lack of mutual confidence or trust.³

In Nicolardi v. Daley, Master Dash held as follows:

The test is not whether the client wants the solicitor to continue to act for him. The test is whether there has been such a loss of confidence that justifies the solicitor's withdrawal. In my view it is obvious that the solicitor-client relationship has broken down. Mr. Nicolardi does not have confidence in Davies' competence, integrity or opinion. It was reasonable for Davis to ask to withdraw. It is asking the impossible of the solicitor to continue to represent a client in light of such criticism about the services that he has provided.⁴

Without going into details about the loss of confidence in the present case, I accept that McLeish Orlando LLP's affidavit and Ms. Stepien's own statements clearly demonstrate a breakdown in communication and confidence between the solicitor and client. Ms. Stepien discussed at length various incidents wherein she was given legal advice by her solicitor and why she disagreed with such advice and why she refused to accept it, and what course of action she wished her solicitor to undertake. Her statements describe a situation which goes far beyond a client's decision to inform her lawyer that she needs "additional information" or has a "concern about the case in order to work to resolution."

Despite her submissions to the contrary, I find Ms. Stepien simply does not have confidence in McLeish Orlando LLP's competence, opinion, or abilities to continue to represent her in these proceedings. I find that there has been an irrevocable breakdown in the solicitor-client relationship.

I provided Ms. Stepien and McLeish Orlando an oral order at the conclusion of the motion. In regard to what conditions might be placed on the withdrawal order, I note that McLeish Orlando LLP has already filed its written submissions on behalf of Ms. Stepien in this appeal, fulfilling the obligation set upon it by Delegate Pressman in the preparation for the hearing of this appeal. Accordingly, I set no further conditions on the withdrawal order.

As of the date of the motion, the hearing of the appeal was scheduled to proceed some two-and-a-half months in the future. Ms. Stepien did not indicate whether she would seek to retain a new representative, but I am prepared to consider a request for an adjournment of this hearing, if she so desires.

The motion brought by McLeish Orlando LLP to withdraw from the proceedings as representative is granted.