The Forum commenced at approximately 1:00 p.m., and was adjourned at approximately 3:45 p.m.
Forum Members in Attendance
Eric Grossman/Chair, Bar Forum, Zarek Taylor Grossman Hanrahan
Claude Blouin/Samis, Blouin, Dunn
Nestor Kostyniuk/Kostyniuk & Associates
Rene Clonfero for Paul Jewell/Jewell Michael Obradovich
Jan Mackintosh/Ontario Insurance Commission
Grant Dow/Flaherty Dow Elliott
Ivan Luxenberg/Malach & Fidler
Len Kunka/Thomson, Rogers
Andrew Richardson/Daniel, Wilson
Donna Brown/Ontario Insurance Commission
Elisabeth Sachs/Ontario Insurance Commission
Paula Buchok/Ontario Insurance Commission
Gary Spector/Spector & Partners
Marla Cox/Hughes, Amys
Kevin Doan/Juan F. Carranza
Philippa Samworth/Fireman Regan
Guy Jones/Ontario Insurance Commission
Eric Endicott/Ontario Insurance Commission - Legal
Harry Brown/Iacona Brown
Jim Malcolm/Ontario Insurance Commission
Peter Cozzi/Peter Cozzi - Law Office
Approval of Minutes
The Forum approved the summary of discussions from Friday January 30, 1998 without amendment.
Consultation With the Commissioner of Insurance
The Commissioner had asked to address this Forum to obtain input on the implementation plans for the new Financial Services Commission of Ontario (FISC). However, she was unfortunately called away to another engagement and has asked to attend at our next Forum meeting instead.
Meditation
Paula Buchok reviewed the statistics presented and confirmed that Mediation filings were down 15% from last year. However, settlement statistics remained consistent.
Paula Buchok tabled the Jurisdiction Committee report on independent examinations and DAC non-attendance and access in Mediation. This report has been presented to Dispute Resolution management for further review. It is expected that some of the recommendations from the Jurisdiction Committee report may lead to Dispute Resolution Code amendments. Bar Forum members have been invited to contact Ms. Buchok with their concerns or comments with respect of the Committee's report.
A discussion was held regarding the increased difficulty in achieving settlement at Mediation under Bill 59 by reason of the interface between the accident benefit claims and the tort claims. Counsel noted that as long as there is a future loss of income claim being advanced on the tort claim, it is very risky to contemplate signing off on the accident benefits.
The Commission has reiterated its willingness to invite the tort representatives to accident benefit mediations with the hopes of levitating or minimizing these problems. While the Mediator from the OIC will not mediate the tort issues, often times the presence of representatives from the tort carrier may be of assistance in terms of getting a resolution or perhaps the very least getting a tort carrier to agree to the accident benefit resolution.
As an addendum to mediation discussions, at the conclusion of the meeting Ms. Buchock announced to all those remaining that Mary-Jo Sullivan has taken a secondment within the OIC and as such competition is being held for an Interim Mediation Manager with the results not having been determined.
Arbitration
Jim Malcolm reviewed the statistics. Arbitration decisions in the year ending March 30, 1998 show an average of 160 days from the date of completion of the case to the date of release of decision. The average reflects a number of old decisions being released. It was noted that as at the end of March
1998, the average was down to 111 days. By the same token, the average number of days from registration for arbitration to closure of file has increased to 291 days. It is likely given the continued backlog with respect to Arbitration hearing dates this average may go up before it comes back down.
The Commission's making available of early hearing dates commencing in March 1998 through the rest of the year has been successful and that most of the earlier hearing dates have been taken although there remains some pockets of dates available in June, July and August. The next hearing date availability is in March and April, although on a limited basis, with more wide open availability not existing until late May 1999. Pre-arbitration hearings are available as early as the first week of June.
A discussion was held with respect to potential of a further increase for delay in respect of obtaining Arbitration dates. It was noted that because of the significant drop-off in volume at mediation, it is expected that there will be a similar if not greater drop-off in respect of filing for Arbitration such that the decreased volumes finally will lead to a decrease in backlog without any further actions being taken by way of additional personnel.
Jan Mackintosh provided to the Bar Forum members in attendance a draft practice note for use in Neutral Evaluation.
A review of the statistics on Neutral Evaluations showed virtually no change from the last meeting.
Guy Jones announced that the formal program with respect to the use of settlement officers in the week or two weeks prior to scheduled hearing dates will be officially implemented in the next six weeks. The system starts with a phone call from either the settlement officer (Arbitrator) or an administrator from the OIC in the second week prior to the scheduled hearing date with a view to arranging a date in the week prior to the hearing for a settlement conference. The settlement conference will typically be done by telephone.
In response to inquiries made by Bar Forum members, the Commission indicated that where the parties indicate a willingness to have a similar type of settlement meeting prior to the two weeks before a hearing date, the letter directed to the Registrar is likely all that will be required in order to facilitate such a meeting. The Commission is always willing to provide its services to parties who indicate a willingness to attempt a resolution, subject to resource of availability.
A more streamline process with respect to signing of consent orders has been implemented. The Commission has obtained stamps to "true up" draft orders provided by counsel. In order to expedite the process, counsel are reminded to provide three copies of draft orders to the Commission. They will then be stamped and returned.
The Chair indicated he received a phone call from out of town counsel indicating ongoing concerns with respect to filing of documents for Arbitration when noting that sometimes it was taking many days for documents that were couriered to find their way into the Arbitration file. The Chair raised this for discussion and it was confirmed by the members of the Bar Forum that they had encountered
similar problems.
The Commission members of the Forum undertook to make immediate investigations into this problem and to take steps to eradicate it now that is has been made known. In the interim, Commission representatives reminded all counsel that in order for documents to make their way to the Arbitration files more expeditiously, it is necessary to address the correspondence to the Dispute Resolution Unit on the 14th Floor. In default, most documents will end up on the 17th floor, which is where general mail for the Ontario Insurance Commission goes. This can delay the process. Similarly, if mail is being directed to the Mediation Unit, the address of the envelope should indicate same that it could be directed to the 15th floor appropriately.
A Bar Forum member indicated some concern with respect to the page breaks on Arbitration decisions when they are being pulled from the Internet. The page breaks do not coincide with the page breaks in the actual paper decision and as such, it can be difficult to reference items within a decision where the page breaks are different. As such, it was suggested that numbering of paragraphs may be of assistance to obviate this problem. Commission members of the Forum indicated a willingness to investigate this possibility, but noted that Lotus Notes programming that is used at the Commission may make such a request difficult to implement.
Appeals
Director Sachs indicated that the backlog continues to be eliminated in respect of old appeal decisions. Twenty-eight decisions released in the last year have been more than 300 days old. This has caused the average age of decisions on appeal to be 353 days. In this regard, the Director indicates that she only has three old decisions remaining.
Director Sachs further noted that in the one year period ending March 27, 1998, there were seventy-three appeals received, which is somewhat less than expected. However, it was noted that there were only 117 decisions issued in the same time frame, which indicates that the 38% appeals rate that Director's Delegate Drapper spoke of at the last meeting is still be exceeded, even when one considers that of the seventy-three received, five of them were variation requests.
Director Sachs indicated that Director's Delegate Naylor was back for full duties as of January and is now current in respect of all of her appeals. Director's Delegate Rotter was seconded to the Appeals Unit and will end her stay in the Appeals Unit as at July 13, 1998.
Appointment of New Chair of the Forum
The Chair indicated that his two year term as Chair of the Forum expires as at May 1998. He invited anyone interested in becoming the Chair of the Forum for the next term to indicate that interest to him or to Jim Malcolm before the next meeting. If there are numerous interested parties, then a vote can be taken with respect to electing the new Chair.
Next Meeting
The next meeting for the Bar Dispute Resolution Group Forum is scheduled for Friday, May 29, 1998 at 1:00 p.m., sharp at the offices of the Ontario Insurance Commission, 14th Floor.
Adjournment
The meeting adjourned at approximately 2:45 p.m.
Financial Services Commission of Ontario