Council Forum Minutes of Meeting - November 28, 1997

The Forum commenced at approximately 1:10 p.m. and was adjourned at approximately 3:25 p.m.

Forum Members in Attendance

Eric K. Grossman - Zarek Taylor Grossman Hanrahan - Chair, Bar Dispute Resolution Group Forum
Joan Takahashi - Borden & Elliot
Michael Gillen - Schwarz Gillen
Nestor Kostyniuk - Kostyniuk & Associates
Bill McCorriston - Hughes, Amys
Catherine Zingg - Flaherty Dow Elliott
Paula Buchok - OIC
Gary Spector - Spector & Partners
Stanley Tessis - Laxton, Glass & Swartz
Stanley Pasternak - Pasternak & Fagan
Guy Jones - OIC
Jan Mackintosh - OIC
Eric Endicott - OIC Legal
Liz Iwata - Kingsway
Isobel Fealdman - OIC
Elisabeth Sachs - Director of Arbitrations - OIC
Stephen Malach - Malach & Fidler
Peter Cozzi - Malach & Fidler
Claude Blouin - Samis Blouin, Dunn
Andrew Richardson - Daniel, Wilson

Mediation

1. Paula Buchok advises that there has been a 10% drop in mediation filing in the last quarter. This is a decrease of 23% from the actuarial forecast. Consequently, there is no back log whatsoever. This is led to the cessation of the use of one of the two introductory letters into mediation. Settlement statistics remain constant in showing a 50% full settlement rate and roughly 28% partial resolution rate.
   
   
2. Bar Forum members were asked about the perceived reasons for the drop in mediations. Some thought that the decrease is based on he elimination of non-earners and caregivers as recipients of weekly benefits. Moreover, given that income benefits have been reduced to 80% of net as opposed to 90% of net, there are less people who can afford representation or who can afford to pursue remedies against the insurer. Moreover, it is perceived that benefits are being denied faster and that the ultimate resolution of cases is being achieved faster.

Arbitration

4. The number of pending arbitration cases continues to grow but at a much slower rate than anticipated. The pending number of arbitrations is actually decreased by 25% from the actuarial projection. As at October 31, 1997 there were 2,102 cases pending in the Arbitration Unit. The average aged decisions continues to drop and is now 112 days.
   
   
5. In discussing the reasons for the decrease in arbitration filings, one bar forum member indicated the belief that the decline will continue at a more rapid rate given the decrease in mediation, which is the best indicator for what will happen in arbitrations. Moreover, it was noted that more people outside of Toronto are using the court system and similarly, cases involving OMPP claims are proceeding to private mediation accompanied by the tort cases.
   
   It was also perceived that under Bill 59, where there is a high deductible for tort claims, less people are seeking legal counsel. The same could probably be said with respect to the availability of only 80% of net for accident benefits. When people are not pursuing remedies in tort, they are likely to consult a lawyer less frequently and as such rights are not be pursued as vigorously for accident benefits.
   
   
6. A great deal of time was spent discussing scheduling issues. Pre-arbitration hearings are now being scheduled to commence as at February 1, 1998 and hearings are now being set in the end of October 1998.
   
   
7. Bar Forum members were all concerned about the effect the additional delay to getting an arbitration hearing date will have on adjournment needs. Counsel noted concern about the ability to predict availability of counsel and witnesses and the effect that this unpredictability will have on the need to seek adjournments. OIC members of the forum recognized that this back log may create adjournment concerns that otherwise did not exist and recognize that they will have to take this problem into consideration when dealing with adjournment requests in the future.
   
   
8. A Bar Forum member raised concern about the back log in arbitration date availability and its effect on adjournment requests being made at this time. It was suggested that some arbitration date slots be kept in reserve for cases where adjournments are necessitated, so that adjournments need not be for what may now be a year. OIC members of the forum indicated while this was a worthwhile suggestion, the scheduling protocols in use may not make such a suggestion easy to implement. The OIC will nonetheless look at ways to assist earlier scheduling in cases of hardship.
   
   
9. It was noted that the self-administered pre-hearing project has not been pursued by counsel in that there are virtually none being conducted at this time. It was suggested that in order to expedite matters further, self-administered pre-hearings could be used more, especially where there are experienced counsel on both sides of the file.

Roster Arbitrator Project

10. Isobel Fealdman reported the project started on October 20, 1997 and is scheduled to end at the end of March 1998. The goal is to eliminate a back log of pre-arbitration hearings such that the roster arbitrators are to conduct 500 pre-arbitration hearings during the time this project is in place. So far 153 pre-arbitration hearings have been conducted by roster arbitrators, for an average of 30 per week, such that the project is on track. The statistics with respect to settlement are totally in line with the OIC arbitrators in that 27% of the pre-arbitration hearings are settling.
    
    
11. There are 57 arbitrators on the roster. There are 41 on the "A list", consisting of individuals who have never appeared before the OIC and 16 people on the "B list", who have appeared before the OIC in the past. Thirty-eight of the 41 individuals on the A list have been used, and the other 3 have only not been used by reason of scheduling conflicts. There have only been 2 individuals on the B list used, and their involvement is more cumbersome given that a consent of both parties is required before a B list roster individual can be used. It was noted that while the A list roster Arbitrators have been trained only to handle Bill 164 cases, some of those on the B list can handle cases in all three regimes.
    
    
12. Ms. Fealdman indicated that she is seeking feedback in respect of the roster pre-arbitration project and has been phoning counsel to get a better understanding of how this project has been going. It is the intention of the Commission to vet the list of roster arbitrators further. If there is any feedback for Ms. Fealdman, she has invited phone calls to her at 590-7248.

Neutral Evaluation

13. There have been 53 cases filed for neutral evaluation. Of those 53, 45 of the cases have closed with 8 left on the system. Notwithstanding these numbers, only 11 have actually gone before neutral evaluation, with the remainder switching back into the regular pre-arbitration hearing stream. Of the 11 that have gone to neutral evaluation 9 have settled.
    
    
14. It has been noted that in order for the neutral evaluation to be successful, all productions must be complete. Where the productions have been lacking, the parties have generally switched back into the regular pre-arbitration hearing stream. Indeed, one of the counsel of the forum confirmed that the failure in one of the two failed neutral evaluations appears in part to have occurred because there was not a level of production required to make it successful.

Appeals

15. Director Sachs notes that there are now 82 appeals pending. There are roughly 5 -6 appeals filed per month. As an example, 4 new ones were filed in November whereas 6 decisions were released during that time. It is anticipated that each of the Director's delegates can handle 24 appeals per year and the director can handle 12, leading to 60 decisions per annum. Accordingly, the back log will continue to decrease.

Jurisdiction Sub-committee

16. A lengthy discussion was held with respect to issues confronting the jurisdiction sub-committee on access to mediation in the event of non-attendance at independent examinations and DACs. Two issues upon which consultation from the wider forum was sought dealt with instances where an insured person sought a disability DAC pursuant to section 64 but then ultimately did not attend or elected not to attend, and the other issue involved whether the Report of Mediator should deal with substantive issues or only the procedural ones where there has been a procedural issue pleaded with respect to the right to access mediation. The views of all of the forum members were canvassed on this issue and Ms. Buchok has undertaken to take the wider views of the forum back to the jurisdiction sub-committee for the purposes of drafting sub-committee's recommendations.

Company Initiated Settlement Days

17. Mr. Malcolm reported that State Farm along with the OIC's assistance, undertook settlement days at the Ontario Insurance Commission for two consecutive days in October. Thirty-three cases were brought on these 2 days and 19 of them settled, leading to a 57% success rate. There were 10 different counsel appearing for State Farm and 23 different counsel appearing for claimants. It had been observed that there was a direct correlation between the presence of the claimant him or herself at the settlement conference and the ability to get the case settled. Notably, of the 19 cases that settled only 3 of those cases required Arbitrator intervention from the OIC.
    
    
18. State Farm undertook another settlement day outside of Toronto where they attempted to resolve 3 cases in Ottawa on a given day, and were successful in all 3 occasions. The OIC made an Arbitrator available for that event.
    
    
19. It was noted that the success of these undertakings was directly attributed to the fact that the insurer was able to pick their own day for this settlement "blitz" and allocate appropriate resources to it. The OIC indicated that they would be more than happy to accommodate other companies who wished to take on a similar project. In dealing with out of town files, the OIC would be content to send an Arbitrator out of town for such a "blitz" but noted that 2 cases would be under utilization of an Arbitrator such that there must be at least 3 to 4 cases per day to be worthwhile.

Other Business - Seminar

20. The issue of conducting a further continuing education program was discussed. Director Sachs noted that the Law Society's special lectures will be on personal injury and will be taking place in the spring of 1998. This might conflict with any programs that we seek to put on. The idea of workshops dealing with either specific substantive issues or events at the OIC such as mediations and pre-arbitrations was discussed. While the idea was perceived to be worthwhile, it was also the consensus that such a program would probably be premature in the face of the most recent changes under Bill 59 and the fact that very few cases will have been dealt with by the spring under that regime to make such a program instructive.
    
    Moreover, it was perceived that a program in the spring of 1998 would be too soon since the last one. Accordingly, it was believed that a fall 1998 program would be more appropriate and as such this issue has been deferred to the spring of 1998 for further discussion.

Adjournment

21. The meeting adjourned at approximately 3:25 p.m.

Next Meeting - Friday, January 30, 1998 - 1:00 p.m.

22. The next scheduled meeting of the Bar Dispute Resolution Group Forum is Friday, January 30, 1998 at 1:00 p.m., sharp at the offices of the Ontario Insurance Commission, 14th Floor.
    
    
23. The remaining meeting dates for 1998 as scheduled are Friday, March 27, 1998, and Friday, May 29, 1998.