DALEA NAAMO v. AXA INSURANCE (CANADA) FSCO A13-003753 and A13-007041

FACTS

The Applicant, Dalea Naamo, made claims for statutory accident benefits from AXA with respect to motor vehicle accidents that occurred on February 9, 2011 and October 26, 2011. In 2013, the Applicant commenced two applications for arbitration at FSCO with respect to AXA’s denial of claims for statutory accident benefits. In both applications, the Applicant is represented by Sokoloff Lawyers. Similarly, the Insurer chose to retain one law firm (Laxton Glass LLP) to represent it on both applications.

The Applicant objects to AXA having the same lawyer (or law firm) represent it on these two applications and seeks an order for the removal of that firm from the record on both matters (essentially, forcing AXA to hire two different law firms to represent it — a different firm for each of the two applications). A pre-hearing conference for both matters was scheduled to be held on February 25, 2014. At that time, the Applicant objected to proceeding with the pre-hearing discussion in either matter until she obtained a ruling on her motion for an order removing Matthew J. Sutton of Laxton Glass LLP as solicitor of record for the Insurer in both applications.

HISTORY

Relying on the factors set out in Dervisholli v. Cervenak[1], namely: was one in which the same law firm was defending the insurer (State Farm) on both the applicant’s claims for accident benefits and on the tort claim. Justice Hambly felt that, given the difference between the duty owed by State Farm to the applicant in the accident benefits claim and its duty in the tort claim and given that, by having the same law firm representing it in both claims, the insurer might gain access to information in one case to which it would not normally have access in the other, there was at least a potential for the appearance of impropriety.  

ISSUE

The Applicant has brought a motion to have Matthew J. Sutton of Laxton Glass LLP removed as solicitor of record for the Insurer (due to a conflict of interest allegedly arising from Mr. Sutton representing AXA on both of these arbitration proceedings).

RULE

Section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended.

ANALYSIS

The decision in Dervisholli was not binding upon the decision maker. There were contrary decisions from the Divisional Court and from a Director’s Delegate that are binding upon the decision maker and that put into question the value of the Dervisholli decision as a precedent. It also has less relevance to the present case. In the present case there is no conflict and no appearance of impropriety. In such circumstances, it would make no legal or practical sense to force AXA to be represented by two different lawyers. The Applicant has failed to satisfy me that, by having the same lawyer or firm representing the Insurer, this somehow prejudices the Applicant or increases the risk of unreasonable conduct on the part of the Insurer.

CONCLUSION

The Applicant has failed to prove that having AXA represented by the same firm in responding to claims for accident benefits arising from two accidents constitutes either a conflict of interest or an abuse of FSCO’s process. For these reasons, the Applicant’s motion is denied.

 

[1] 114 O.R. (3d) 20 (S.C.J.), 2012 ONSC 7137 (CanLII) (“Dervisholli“).

sharifullah Mahboob is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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