Rosemary Usengbuwa v. TD General Insurance Company, 2017 ONFSCDRS 77

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

Neutral Citation: 2017 ONFSCDRS 77

FSCO A15-001650

BETWEEN:

ROSEMARY USENGBUWA

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Alan Mervin

Heard: By telephone conference call on March 3, 2017

Appearances: Nour Salman of Bartolini, Berlingieri, Barrafato, Fortino, LLP

Rosemary Usengbuwa

Geoffrey Yu for TD General Insurance Company

Issues:

The Applicant’s representative, Nour Salman, licensed paralegal, has brought this motion on behalf of herself and her law firm, Bartolini, Berlingieri, Barrafato, Fortino LLP, requesting an order to be removed as representatives of record for the Applicant alleging a breakdown in the solicitor-client relationship.

Result:

The motion is allowed. Ms. Nour Salman, licensed paralegal, and the firm of Bartolini, Berlingieri, Barrafato, Fortino LLP, are removed as representatives of record for the Applicant. As no expense award was requested by either party, no order as to expenses will issue.

BACKGROUND:

The Applicant, Rosemary Usengbuwa, made claims for statutory accident benefits from TD General with respect to a motor vehicle accident that occurred on June 8, 2012.

In 2013, Mr. Barrafato commenced an application for arbitration at FSCO on the Applicant’s behalf. The matter proceeded to mediation on December 1, 2014, at which time the parties were unable to resolve any of the issues in dispute.

The matter then proceeded to a pre-hearing, first held on October 27, 2015 before Arbitrator Osunde, and resumed before me on April 15, 2016, at which time an arbitration was scheduled to proceed on May 9-11, 2017. The Applicant was represented at the time.

Since then, the Applicant’s representatives have had difficulty contacting her, and have been unable to receive instructions as to how to proceed on her behalf.

They filed this motion requesting that an order issue removing Ms. Salman and her firm from the record on the basis of a breakdown in the solicitor-client relationship.

EVIDENCE AND ANALYSIS:

The Applicant’s representative filed its motion materials in advance of the date set for the motion and I had an opportunity to read that material prior to hearing oral arguments on March 3, 2017 from Mr. Yu (on behalf of the Insurer) and from Ms. Salman (on behalf of Bartolini, Berlingieri, Barrafato, Fortino LLP). The motion proceeded by way of telephone conference call.

At the commencement of the hearing, I contacted Ms. Usengbuwa by telephone at her residence in Edmonton, Alberta, and she was able to participate in the hearing of this motion.

Mr. Yu indicated that he did not oppose the Applicant’s motion.

Ms. Usengbuwa, when asked, confirmed that she had received the motion materials, and was aware of this motion and its purpose.

She stated orally before me and both representatives that she consented to her representative’s request that Ms. Salman and her firm be removed from the record as her representative.

The motion materials contain a sworn affidavit, dated February 2, 2017, by Mr. Paul Barrafato, a partner of the firm, setting out the numerous unsuccessful attempts that were made in an effort to contact the Applicant by email, telephone and regular mail after the April 15, 2016 pre-hearing. These attempts occurred between April 29 and June 3, 2016. ¹

An offer to settle was presented by the Insurer on April 15, 2016, time limited to June 20, 2016 and the Applicant’s representative was unsuccessful in attempts to receive instructions from the Applicant as to how to proceed. However, the Insurer was advised by Ms. Usengbuwa’s husband by telephone, on one occasion, that the Applicant was aware of the attempts to reach her, but chose not to respond.

A disengagement letter was then sent to the Applicant at her last known address in Edmonton, Alberta.

On August 2, 2016, well past the expiry date of the offer, the Applicant telephoned her representative and was advised that there had been an offer to settle. The Applicant did not provide instructions at that time, advising that she needed time to think about it.

Subsequent to this, the Applicant’s representative filed this motion to withdraw on the basis of a breakdown in the solicitor-client relationship as it had been unable to obtain instructions.

I am satisfied that the Applicant was properly served with the motion materials, was aware of the reason for the motion, and consented to the withdrawal of her representative.

Pursuant to Rule 9.8 of the Dispute Resolution Practice Code, which allows an adjudicator to permit a representative to withdraw, subject to any terms the adjudicator considers just, I am satisfied, based on the oral evidence, and on the documents filed, that there has been a breakdown of the solicitor-client relationship.

The Applicant’s representative, Nour Salman and the firm of Bartolini, Berlingieri, Barrafato, Fortino LLP are permitted to withdraw as representative and are removed from the record.

EXPENSES:

As no expenses were sought by either party, there is no order for expenses.

March 13, 2017

Alan Mervin Arbitrator

Date