Neal Ryan v. Intact Insurance Company, 2019 ONFSCDRS 20

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

Neutral Citation: 2019 ONFSCDRS 20

FSCO A16-000397

BETWEEN:

NEAL RYAN

Applicant

and

INTACT INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Anne Sone

Heard: January 16, 2019, in at the offices of the Financial Services Commission of Ontario in Toronto, Ontario. Final submissions were received on February 15, 2019.

Appearances: Maurice Benzaquen for Mr. Ryan John P. Desjardins for Intact Insurance Company

Issues:

The Applicant, Neal Ryan, alleges he was injured in a motor vehicle accident on January 19, 2015. He applied for statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.¹ Intact disputed whether an accident had taken place. The parties were unable to resolve their disputes through mediation, and Mr. Ryan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In a letter dated January 15, 2019, the Applicant’s representatives, Devry Smith Frank LLP, advised that they intended to bring a Motion at the Preliminary Issue Hearing on January 16, 2019, seeking to remove themselves as solicitors of record.

The issue is:

Should Devry Smith Frank LLP be permitted to withdraw as the representative for Neal Ryan?

Result:

Devry Smith Frank LLP is permitted to withdraw as the representative for Neal Ryan.

EVIDENCE AND ANALYSIS:

Motion seeking Permission to Withdraw Representation

On January 15, 2019, Devry Smith Frank LLP sent a letter to the Financial Services Commission of Ontario by facsimile transmission regarding this motion. It also attempted to personally serve Mr. Ryan. The letter to Mr. Ryan stated, in part, as follows:

Please be advised that there is Preliminary Issue Hearing scheduled for January 16, 18, 21 and 25, 2019. We have attempted to contact you via cell and courier with no success to date. We intend to bring a Motion at the Hearing tomorrow to remove ourselves as your lawyers as we are unable to get instructions from you regarding the Hearing.

The letter to the Commission stated that Devry Smith Frank LLP had been unable to get instructions from its client regarding the Preliminary Issue Hearing scheduled to commence on January 16, 2019.

This letter also outlined numerous attempts to contact Mr. Ryan by various means including numerous calls to his last known telephone number with no response and a couriered letter to his last known address requesting immediate contact. Devry Smith Frank LLP stated that it had also conducted an MTO search for his last known registered address on his driver’s licence and conducted a reverse address look-up with no corresponding number. Devry Smith Frank LLP also inquired of residents of neighbouring homes if they were in contact with him, with no success.

Devry Smith Frank LLP provided Mr. Ryan’s last known address and telephone number. It stated that it did not have an email address for him.

On January 10, 2019, at 10:00 a.m., I commenced the motion hearing in this matter. By 11:10 a.m., Mr. Ryan had not appeared.

Law regarding a Motion to Withdraw Representation:

The Dispute Resolution Practice Code (Fourth Edition—Updated January 2014) (the “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 (DRG) 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:

Devry Smith Frank LLP has provided a written request for withdrawal of its representation of Mr. Ryan through its letter dated January 15, 2019. This letter also sets out Mr. Ryan’s last known address and telephone number.

Devry Smith Frank LLP was unable to communicate with Mr. Ryan. He also did not respond to a letter it attempted to personally serve on him or appear at the hearing regarding this motion. Based on the foregoing, I am satisfied that there has been a complete breakdown in the solicitor-client relationship.

In addition, Devry Smith Frank LLP has been unable to obtain Mr. Ryan’s consent to the withdrawal of Devry Smith Frank LLP as his representative.

Under section 9.1(c) of the Code, parties must provide the 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 Devry Smith Frank LLP has complied with the provision of the Code, and that it is appropriate to permit it to withdraw as Mr. Ryan’s representative in this proceeding.

May 1, 2019

Anne Sone Arbitrator

Date