Council Forum Minutes of Meeting - May 29, 1998

The Forum commenced at approximately 1:00 p.m., and was adjourned at approximately 3:40 p.m.

FORUM MEMBERS IN ATTENDANCE

Eric Grossman, Chair, Bar Forum Zarek Taylor Grossman Hanrahan
Chris Schnarr   Cassels, Brock
Janice Mackintosh Ontario Insurance Commission
Paul Lo Presti Flaherty Dow Elliott
Shonna Neil Ontario Insurance Commission
Paula Buchok Ontario Insurance Commission
Michael Gillen Schwartz, Gillen
Bill McCorriston Hughes, Amys
Stephen Malach Malach & Fidler
David Draper Ontario Insurance Commission
Gurcharan Anand
Nestor Kostyniuk Kostyniuk & Associates
Peter Cozzi
Stanely Pasternak
Guy Jones Ontario Insurance Commission
Rob McNutt Ontario Insurance Commission
Harry Brown Iacono Brown
Dragana Sivac Ontario Insurance Commission
Jim Malcolm Ontario Insurance Commission
Adam Wagman Thomson, Rogers
Stewart McMahon Ontario Insurance Commission

Meeting - May 29, 1998

The Forum commenced at approximately 1:00 p.m., and was adjourned at approximately 3:40 p.m.

Approval of Minutes

The Forum approved the summary of discussions from Friday March 27, 1998, without amendment.

Meeting With MR. Justice George Adams

Eric Grossman, Stanley Pasternak and Michael Gillen filled in the remaining members of the Forum about a consultation they attended together with Matt Duffy and Claude Blouin.  This consultation came at the invitation of Mr. Adams who has been retained by the Superintendent and CEO of Financial Services Commission of Ontario with a view to providing some input as to the current status of the Dispute Resolution Group of the Ontario Insurance Commission.  
The representative group from the Bar Forum provided feedback to Mr. Justice Adams in respect of the DRG of the
OIC .  Members of the Forum were invited to make further written submissions to Mr. Adams if they saw fit, but were advised to do so immediately given the expectation that Mr. Adams would be releasing his report to the Commissioner with a week to ten days.

CONSULTATION WITH THE SUPERINTENDENT OF FINANCIAL SERVICES 

(Commissioner of Insurance)

Ms. Palozzi advises that the Financial Services Commission of Ontario comes into effect July 1, 1998.  At that time, there will be a new Schedule 1 Commission comprised of the Ontario
Insurance Commission, the Pension Commission and the Deposit Institutions Division forming into "FSCO" the Financial Services Commission of Ontario.  Ms. Palozzi was quick to point out that this merger will have no significant impact on the Dispute Resolution Group of the Ontario Insurance Commission.  The DRG of the Ontario Insurance Commission has not changed at all and there has been no merger of their activities with any of the other institutions now amalgamated within FSCO.

Ms. Palozzi did indicate that the sophisticated level of alternate dispute resolution in the Ontario Insurance Commission may be borrowed by other facets of FSCO, but there was no indication
that any of the resources of the Dispute Resolution Group where there are current pressures would be called upon for purposes of sharing.  Ms. Palozzi confirmed that all three agencies within FSCO are to be fully self-funded such that the full $35 million budget of FSCO will come from stake-holders as opposed to general revenues.  Moreover, it is possible the budget of FSCO will not be shown in the Ministry of Finance estimates and will therefore not be subject to constraints as a result.  

Ms. Palozzi invited comments and concerns from members of the Forum.  During the course of discussions, members of the Forum indicated concern with respect to potential lack of
consultation with this group in respect of any recommendations for implemented change into the Dispute Resolution Group. Members of the Bar Forum who act for Applicants were concerned about the perception of the change in name from the Ontario Insurance Commission to the Financial Services Commission may have on unsophisticated injured accident victims.

Indeed, there was much concern about the lack of consultation with the less organized accident victims, as they are equal stake-holders within the industry, and indeed in some circles maybe perceived as a source of the industry's finances to make them stake-holders.  Concern was raised with respect to the consultation the Commissioner has with the industry representatives, insofar as the observations from the industry representatives that the Commissioner speaks with are not likely at all representative of the comments and concerns raised by the industry representatives working "in the trenches" which observations are more similar to those of bar counsel in this Forum.  In this regard, concern was raised with respect to the Commissioner's comments learned from
industry representatives suggesting that the industry would prefer to privatize delivery of Dispute Resolution for accident benefits.  It was emphasized to the Commissioner that this view is not shared by any of the members of the Bar Forum and it is not likely the view of the majority of insurance industry representatives in the claims field.  As an example of this concern, Bar Forum members referred the Commissioner to the delivery of private Arbitration decisions on priority and loss transfer issues, which have been felt to be sadly lacking in consistency and being delivered at considerable expense and without any precedential value given their lack of communication within the industry.  

Ms. Palozzi undertook to view minutes of past Bar Forum meetings with a view to obtaining further input from this Forum in respect of issues raised in the past for purposes of following up on the recommendations made by Mr. Adams.  She also made a commitment to get input from the Bar Forum Group regarding the implementation of Mr. Adams report.  Lastly, she undertook to make an effort to interact more with the Bar Dispute Group Forum in the future.

A committee has been struck to provide the input regarding the implementation of Mr. Adams report should such recommendations from the Bar Forum be required before the next scheduled meeting late September 1998.  That committee is comprised of Gurcharan Anand, Peter Cozzi, Stanley Pasternak, Stephen Malach, Harry Brown and Eric Grossman.  Adam Wagman will act as an alternate.

Meditations

There are 38 authorized mediators within the Dispute Resolution Group.  With the 26 mediators are currently active and the reduced case intake previously reported, no significant backlog should develop.  However, notwithstanding the reduced number, the 26 mediators actively working at the OIC are exactly the correct number in respect of the volume of meditations being filed.


To that end, while last year there were 12,000 meditations, this year the projection is between 9,500 and 11,000.  Mediators continue to do 8 meditations per week and roughly 335 meditations per year.  


Given the upcoming summer vacations, it was emphasized that counsel be cognizant of the need to complete mediation within 60 days as mandated by statute.  Paula Buchok reminded counsel that while in rare circumstances extensions can be granted, (i.e. where settlement is eminent), this should be the exception rather than the rule.

Arbitrations

Jim Malcolm noted that the statistics showed a flat line with respect to Arbitration filings.  There were roughly 2,000 Arbitrations in the system.  The average number of days for a decision to be released after completion of the hearing is 104 days as at this time.  The average number of days from filing of Arbitration to closing continues to creep up and is now 298 days.  Of course, this average factors in early settlements on the one hand and cases proceeding through to an Arbitration decision on the other.  The current backlog to obtain a hearing date is 14 months although there are some earlier dates available on a selective basis.

Jan Mackintosh advises that as cases are settling, the dates set aside for those cases being put back in the system such that earlier dates are being made available on a sporadic basis in accordance with the sporadic nature of settlements well in advance of hearings.  Counsel were reminded to indicate to the Commission at the earliest possible stage when a case is settled so as to free up those Arbitration dates.

Counsel were also consulted with respect to the backlogs created by the fixed date system that the Commission has employed.  Counsel did indicate that the fixed date system has been successful for the most part, but were reminded by OIC representatives that it is this fixed date system that contributes to some degree to the backlog.  A suggestion by a Bar Forum member was to create a "running list" system only in respect of short cases of perhaps one or two days, or cases which pertain only to legal issues or involve very few witness.  Bar Forum members were advised by Mr. Malcolm that in cases of one or two days, earlier dates can indeed be provided
without much difficulty in most cases.

Counsel were also reminded that one of the means by which to avoid the 14 month delay would be to make use of the written hearing provisions of the Dispute Resolution Practice Code,
wherein a decision would be provided within 60 days.

Counsel were also advised that while system-wide settlement days have not been successful, settlement days organized by Insurers or by individual counsel have been much more successful.

Counsel were encouraged to pursue these types of settlement days in the future, and were advised by OIC members of the Forum that they would be provided with the resources from the
Commission to assist them with such endeavors.  

One of the Bar Forum members suggested that the "excess" mediators not be allowed to be seconded to other agencies but instead be seconded by the Arbitration Unit to assist further in settling cases at an early stage.  Counsel Forum members suggested that further follow up with respect to settlement be implemented as at three months post pre-arbitration hearing or six month post pre-arbitration hearing during this period where there are twelve and fourteen month delays to hearing dates.

This time frame will allow for the production of documents that may have precluded settlement at the pre-arbitration hearing and will give a further opportunity to discuss resolution without having to wait for a hearing or indeed the week before the hearing for a phone call from a settlement officer. To this end, counsel was reminded by the OIC Forum Members of the need for early production to obviate the need for last minute settlement discussions.

As far as the settlement officers are concerned, this project has been an unqualified success.  The settlement rate in the week before the hearing has been in the 75% to 80% ranges.  It has freed up Arbitrators such that not everyone will have to do settlement discussions at the end of every week and Arbitrators will know when they are on a "settlement officer" week well in advance.

Moreover, counsel are in a position to arrange for settlement conferences with the settlement officer any point in the week before the hearing in a more regimented way.  To that end, there was a discussion with respect to the appropriateness of having a settlement officer made available either a week before the hearing or two weeks before the hearing.  There were opinions going in each direction on this issue.  One of the suggestions that has been made has been to have the letter from the OIC indicating that a settlement officer has been appointed be sent out early on in the week or two weeks before the hearing to allow counsel to either arrange for the
settlement meeting to take place in the week before or in the second week before the hearing, at their discretion.  

Acting Senior Arbitrator Jones further noted that based on a refinement of the calculation of a number of hearings that can be scheduled based on the resources available, one more Arbitration hearing per week will be added to the schedule effective September 1998.

Jim Malcolm advises that the problem identified at a previous meeting with respect to written documentation not making their way to the Arbitration claim file in advance of the hearing has been addressed and it is believed that the problem has been solved.  Please advise Mr. Malcolm if there are further problems.

Dealing with Neutral Evaluations, since the last meeting, it was noted that one further Neutral Evaluation has been conducted and it was successfully resolved.  This brings the statistics to date as 10 settlements out of 14 completed Neutral Evaluations.

Appeals

The Bar Forum members were advised that there are 60 pending appeals.  In the last quarter 8 decisions were released that are under 50 days old and 13 decisions that are over 300 days old such that there are no "old chestnuts" remaining.  Of the 60 pending appeals, it is believed that less than one dozen of them are under reserve.  

Other Business

The Bar Forum members were advised that the OIC's website has been enhanced such that private Arbitration decisions dealing with accident benefit issues are being put on the OIC's website.  All Bar Forum members were invited to submit any and all private Arbitration decisions in their possession, preferably on diskette, so that they can be entered on the website.

Appointment of New Chair Forum

In the absence of the OIC members of the Bar Dispute Group Forum, Michael Gillen was unanimously selected as the new Bar Forum Chair.  

Next Meeting

The next meeting for the Bar Dispute Resolution Group Forum is scheduled for Friday, September 25, 1998 at 1:00 p.m., at the offices of the Ontario Insurance Commission, 14th Floor.

Adjourment

The meeting adjourned at approximately 3:30 p.m.