Council Forum Minutes of Meeting - January 30, 1998

The Forum commenced at approximately 1:10 p.m. and was adjourned at approximately 3:15 p.m.

Forum Members in Attendance

Eric K. Grossman - Zarek Taylor Grossman Hanrahan / Chair, Bar Dispute Resolution Group Forum
Erin Farrell - Iacono Brown
Catherine Zingg - Flaherty Dow Elliott
Michael Gillen - Schwarz Gillen
Nestor Kostyniuk - Kostyniuk & Associates
Lorella Giliberti - Hughes, Amys
Stanley Pasternak - Pasternak & Fagan
Claude Blouin - Samis Blouin Dunn
Peter Cozzi - Peter Cozzi Law Office
Gurcharan Anand - Sole Practitioner
Kevin Doan - Juan Carranza Law Office
Eric Endicott - OIC
Jim Malcolm - Registrar, Dispute Resolution Group - OIC
Elisabeth Sachs - Director of Arbitrations - OIC
Jan Mackintosh - Senior Arbitrator - OIC
Guy Jones - Senior Arbitrator - OIC
Mary-Jo Sullivan -Mediation Co-Ordinator - OIC
Shonna Neil - OIC
David Draper - OIC Appeals Officer
Anne Charsley - OIC

Mediation

1. A review of 1997 calendar year statistics took place. Mary-Jo Sullivan advises that a 50% full resolution rate continues to be maintained with an overall 78 to 80% full or partial resolution at mediation. There is presently no backlog in respect of the filing for mediation. Actuarial projections were for a decrease in mediation volume which has come to fruition. There are currently thirty-two Mediators working on a full-time basis, each of whom are carrying fifty mediation at any given time.

Arbitrations

2. There was a review of the 1997 arbitration statistics. Over the course of the year, the average age of outstanding decisions dropped from 151 days to 121 days. Moreover, the statistics also established that the average number of days from the time an arbitration application is registered to the time the case closes has increased substantially to 320 days from 237 days from the beginning of the year. These statistics also established that 90% of the cases registered for arbitration proceed to a final arbitration decision. This statistic has maintained a steady pace throughout the last two years.
   
   
3. Acting Senior Arbitrator Jones advised that the Dispute Resolution Practice Code will soon be amended to institutionalize the telephone call by Arbitrators the week before the arbitration hearing in order to attempt one last-effort of resolving the case.
   
   
4. The Forum was advised that the roster project for pre-arbitration hearings has achieved if not surpassed its goals of getting rid of the backlog of pre-arbitration hearings. It will not be extended beyond the March 30, 1998 completion date. It was confirmed that the backlog problem for pre-arbitration hearings has been eliminated with the expectation that it will not repeat itself by reason of the decreased volume of arbitration filings in accordance with the actuarial expectations. However, there has been a significant increase in backlog for scheduling arbitration hearings, such that arbitration hearings are now being booked a year away. The Commission has put into place a plan whereby additional arbitration hearing dates will be made available on an earlier basis.
   
   
5. On February 9, 1998, a letter will be directed to all counsel on cases where arbitration hearings are set for September, 1998 and beyond. Counsel will be invited to jointly request an earlier hearing date by March 6, 1998. There will be nine new hearing slots available for every two-week time period, commencing May 4, 1998 for the next six months. If all of the slots are not taken with this letter initiative, then the remaining additional slots will be made available for pre-arbitration hearings which will occur commencing mid-March 1998. It is expected that the earlier arbitration hearing dates will all be taken through the letter initiatives, which will create a domino effect of creating earlier dates in late 1998 and early 1999, based on those dates becoming available and counsel in those cases seek to move to an earlier date even still.

Neutral Evaluation

6. To date there have been eighty requests for neutral evaluation. Thirteen neutral evaluation files remain open. Sixty-seven have been closed. Of those sixty-seven, three were withdrawn, forty were moved into the regular arbitration stream when consent was not provided by the insurer, four were found not to be appropriate for neutral evaluation, and six taken out of the stream because the filing time frames were not complied with. This leaves fourteen cases which have been through the neutral evaluation system. Of the fourteen, eleven have settled, leading to an 80% settlement rate.
   
   
7. Director Sachs advises that there has been only one private request for neutral evaluation, which request has to be made of the Director. In that instance, mediation had already been completed, and the parties jointly approached the Director with the view to appointing a private individual to conduct a neutral evaluation. It was further noted by Mary-Jo Sullivan that there have been no Mediator referred neutral evaluations to date.
   
   
8. The Forum was advised by Senior Arbitrator Mackintosh that a practice note is being prepared to deal the neutral evaluation system, explaining in greater detail how it is to work and emphasizing production obligations. At the same time, the Forum was advised that there is a contemplated change to the Dispute Resolution Practice Code, whereby insurers will be in a position to seek neutral evaluation at the time of the filing of a response of the Insurer, which request would have to be consented to by the Applicant.

Expense Submissions and Arbitration

9. Forum members were shown a sample letter that is being implemented with respect to the effect of offers to settle on expenses. The letter will be sent out by the Arbitrator once the substantive issues of the arbitration have been decided. The letter will indicated what decision was made in respect of the substantive issues, advising the parties that they have five days from the date of the letter to indicate if the results of the arbitration, in conjunction with any previously served offers to settle, may affect this position of expenses in the case. In those instances, the Arbitrator is to be provided with particulars of the offer within that five day time frame.
   
   
10. Members of the Forum indicated concern with respect to the five day time frame, especially where counsel may be on vacation during that five day time frame. We suggested that in instances of any prolonged absence from the office, where there are decisions pending from the OIC to that counsel, then this lawyer ought to alert his or her office to be on the lookout for such a letter, at which time a simple indication to the OIC that counsel may not be able to respond on time because of an absence from the office may be all that is required.

Appeal

11. Director Sachs advised that 105 appeal cases closed in the calendar year of 1997 and yet only 73 appeal cases were registered during that same time frame. This was a 30% decrease and is indicative of the downturn in case load. It was nonetheless noted that there is increased activities at the appeal level from cases involving accidents in 1990 and 1991, which suggests that there may be an increase in activity in variation and revocation applications.
    
    
12. Director's Delegate Draper noted that his review of the statistics showed that the number of arbitration decisions issued over any given period has usually been the prime indicator in respect of appeal applications. The percentage of cases appealed from remained roughly at 30%.
    
    
13. The Forum was advised that Director's Delegate Susan Naylor has returned to full-time duties. Frederika Rotter continues to be on special assignment to the Appeals Unit and will be seconded to that unit for a further two to three months.

Jurisdiction

14. A Bar Forum member noted concern with respect to the refusal of the Mediation Unit to allow a case which had been demonstrated to be settled into the dispute resolution system, even where the Applicant's contention was that the case was not validly settled. While the request was made to discuss this issue at the Forum meeting, the Bar Forum member was not present for purposes of the discussion, which was held in his absence. The Forum was advised of the OIC's procedure, which is not to accept cases into the mediation stream which have been settled unless there has been a rescission of the settlement within 2 business days in accordance with the Settlement Regulation.
    
    
15. The Bar Forum members discussed concerns with respect to the policy and noted that refusal to accept a matter into mediation may have a negative impact on a limitation argument. However, one Forum member noted that the wording in the limitation provisions of the Insurance Act suggests that all that needs to be done is to apply for mediation. This therefore left the possible argument that while the Application for Mediation was not accepted, the condition had still been met. Another Bar Forum member suggested that in those circumstances, it might be appropriate to simply protect the limitation by issuing a Statement of Claim to deal with the issue of setting aside the settlement by way of stated case or application. If successful in setting aside the settlement, either seek to effect the imperfect

    compliance by then seeking to mediate. Thereafter, if the insured otherwise would have preferred arbitration as opposed to litigation, in those circumstances it would be anticipated that a transferral of the file from the court stream to the arbitration stream would likely be accepted.
    
    

16. A more broad philosophical question ensued in respect of the judicial review implications of this policy. The question that was posed by the Forum members, but not answered, was whether documents should be treated as valid on its face thereby obliging an applicant to seek mandamus if he or she believes that the Commission should accept the application, or alternatively, whether the Commission should not put up any impediments on accessing mediation or arbitration, leaving it to be dealt with as an issue for discussion, and thereby also leaving it to the insured to seek judicial review on that decision by the OIC to allow the proceeding to proceed through the system.

Ministry Committee on Designated Assessment Centre Guideline on Surveillance

17. At the request of Philippa Samworth, a discussion was undertaken in respect of the significance of a recently circulated surveillance guideline to DACs from the Ministry Committee on Designated Assessment Centres. The initial concern raised by members of the Forum was in respect of the timing of the implementation of these new guidelines. While it would appear that guidelines have been in the hands of the DACs and have been in force for more than a month, none of the Insurers or counsel on either side of the issues had yet been provided with copies through the appropriate channels. The Bar Members of the Forum agreed it would be appropriate to direct a letter of concern to Richard Tillman of the Accident Benefits Advisory Unit regarding this issue.
    
    
18. In dealing with the substantive issues arising from this new guideline, some applicants' counsel indicated concern about having doctors take the role of inquisitor in respect of the contents of surveillance. One counsel indicated that he would not want his client to be questioned on the contents of surveillance without him present. Another applicant's counsel indicated that an insured person should not be forced to respond to the contents of surveillance.
    
    Indeed, an OIC member of the Forum indicated concern about the quality of response by the applicant as may be recorded in the report and the subsequent reliance by the parties and the possibility if not probability that there may be reliance on these statements as recorded by the DAC in the report during the course of the arbitration hearing. Other counsel acting for insured persons indicated concern that the investigation materials put in front of the DAC must be complete and suggested that it may be appropriate to expand the guidelines to require the insurer that wishes to put surveillance before a DAC to put all of the surveillance before the DAC.
    
    
19. Other comments made dealt with how one defines the term "form an opinion" within the guideline. One Bar Forum member wondered whether the substantiation of an opinion previously established required there to be a review of the surveillance with the insured person. Moreover, there was a concern raised with respect to the obligation being placed on a DAC to make this review with an insured in the absence of security personnel where that may become an issue and the seeming increased role of the DAC in the "gatekeeping" process such that this guideline may impose upon them even greater decision making responsibilities, many of which may not be equipped for based on the medical training that they have.

Other Business - Technology

20. The Forum members were advised that the OIC has taken the next step in technological advancement such that all Dispute Resolution Group members now have external e-mail availability with automatic notification on the individual's computer when a piece of e-mail is delivered. Any individual in the Dispute Resolution Practice Group can be notified by way of e-mail. The e-mail format requires the use of the first initial of an individual's given names and up to seven characters of their surname (ie., jmackint@ontarioinsurance.com for Senior Arbitrator Janice Mackintosh, and gjones@ontarioinsurance.com for Senior Arbitrator Guy Jones.

Adjournment

21. The meeting adjourned at approximately 3:15 p.m.

Next Meeting - Friday, March 27, 1998 at 1:00 p.m.

22. The next scheduled meeting of the Bar Dispute Resolution Group Forum is Friday, March 27, 1998 at 1:00 p.m. sharp at the offices of the Ontario Insurance Commission, 14th Floor.