Lawyer ordered to pay costs after client doesn’t show up to three prehearing discussions about benefits

An Ontario arbitrator has upheld a personal cost award against a lawyer who could not get his client to attend three different scheduled pre-hearing discussions concerning an accident benefits claim.

The lawyer’s client, Roman Luskin, was injured in a 2005 motor vehicle accident and applied to the Personal Insurance Company of Canada for statutory accident benefits.

A pre-hearing discussion was held on Feb. 27, 2007, which Luskin did not attend. He was represented by a lawyer from the office of Alexander Mazin, Luskin’s counsel of record.

The parties agreed to re-schedule the pre-hearing discussion for Apr. 23, 2007.

On that day, Laskin did not attend. Instead, a law student from Maskin’s office represented him.

On Apr. 23, the arbitrator set a new date, May 4, 2007, for a pre-hearing discussion. He ordered that Luskin attend.

In an Apr. 23 letter, the arbitrator warned Mazin that the lawyer could be found liable for an award of costs if his client did not attend the May 4 pre-hearing discussion.

Luskin did not attend the May 4 prehearing discussion. A law student from Maskin’s office attended as his legal representative.

Maskin appealed the award of costs at the Financial Services Commission of Ontario.

Maskin did not dispute the dismissal of Luskin’s claim or even the award of costs against Luskin. Rather, he appealed the personal costs awarded against him, noting that he did try to remove himself as his client’s solicitor of record late in the proceedings.

FSCO rejected his appeal. “The expense of the award was not punitive but compensatory, the Personal having had time and expense wasted in this matter,” FSCO arbitrator Lawrence Blackman wrote. “Indeed, considering the number of attendances in this matter and the $3,000 filing fee incurred by the Personal, which is not recoverable, the $2.551.83 awarded is relatively modest…” •