Meeting September 29, 1998

DISPUTE RESOLUTION GROUP - COMPANIES FORUM Minutes of Meeting September 29, 1998

Attendees :
Donna Brown, Arbitration Unit FSCO
Gail Moser, Economical Mutual Insurance
Mavis Haws, Dominion of Canada Insurance Company
Phil Thorpe, Cooperators General Insurance Company
Brad Barber, Allstate Insurance Company
Shonna Neil, Manager, Mediation Unit, FSCO
Mike De La Haye, Wawanesa Mutual Insurance Company
Debbie Hastings, Ecclesiastical Insurance Group
Mary Wright, Royal and Sun Alliance
Jan Mackintosh, Arbitration Unit , FSCO
Anne Baumgartner, General Accident Group (Canada) Ltd.
Brian Jarvis, Halifax Insurance Company

1. Statistics
   
   The number of Mediation cases pending has declined of the last 12 months. The group expressed concern with respect to the difficulty in resolving cases that involved an ongoing tort claim. It was suggested that there may be occasional instances where the commission can assist in the mediation of such cases, but given some of the concerns raised with respect to time restrictions it was agreed that this should be considered on an ad hoc basis.
   
   The Arbitration statistics also reflect a decline of total pending. The number of cases closed has exceeded the number of cases received for the last 3 months. The average time for an issued decision is at 134 days and this number continues to decline.
   
   The Appeal statistics also indicate a decline in the number of appeal cases pending. It was noted that the average age of decisions issued can be skewed by some of the backlogged cases .
   
   
2. Intake Initiative
   
   This was initiated prior to the Adams report as an attempt to improve the mediation process by discussing the barriers that affect the process. The group will meet with the solicitors and paralegals in addition to the insurers. Issue identification was noted specifically as a significant barrier. It was noted that many insurers sense that too many of the mediation applications are submitted solely for the purpose of initiating the litigation process. The request for Submission of Assessment forms to confirm a disputed issue has helped address this concern.
   
   
3. Adams Report Update
   
   This report has been completed. A steering group and a working group have been created in response to the report. The working group will provide their results in the near future. It appears that there will be encouragement to move forward on some of the report's recommendations.
   
   
4. Hearing Date Delays
   
   The roster project eliminated the pre-hearing backlog that was present in the past year. A formalized initiative has been instituted to deal with hearing date availability which consists of settlement officers contacting participants to facilitate settlement of the arbitration in the two weeks prior to the hearing.
   
   Some participants have suggested that this takes place earlier in the process and the commission is open to consider it. It has been suggested that the settlement officer get involved one month prior to the hearing date. The waiting period for a hearing has been reduced from 14 to 12 months. These attempts at early resolution are often scuttled by production issues.
   
   
5. Production Difficulties
   
   The group indicated that production issues are significantly impacting the ability to settle many of the disputes at the commission. Although these issues are to be resolved prior to the mediation, this is often not the case. There also appears to be difficulty with compelling some participants to adhere to the production agreements. The insurers were reminded that voicing their concerns about another participant's failure to provide documents is problematic if they have not fulfilled their own production obligations. The group was reminded that pre-hearing resumptions can be held to address these problems. However, it must be noted, that the arbitrator does not have the power to dismiss an arbitration claim outright for failing to adhere to the production order. The claim ultimately must be determined on its substantive merits. Adverse inference can be drawn from such a failure and those awaiting productions should document the efforts made to secure these items so those efforts can be considered when expenses are decided.
   
   
6. Election of Vice Chair
   
   The group has selected Phil Thorpe of The Cooperators to act as our vice chair .
   
   
7. Next Meeting
   
   The group will meet again on Tuesday December 1, 1998 at 10 am.