Forum commenced at approximately 1:00 p.m., and was adjourned at approximately 3:00 p.m.
Forum Members in attendance
Amendola Singer Kwinter Gurcharan
Anand Claude Blouin Samis, Blouin, Dunn
Donna Brown Financial Services Commission
Harry Brown Iacono, Brown
Paula Buchok Financial Services Commission
David Draper Financial Services Commission
Eric Endicott Financial Services Commission
Michael Gillen Schwarz, Gillen
Eric Grossman Zarek, Taylor, Grossman, Hanrahan
Elizabeth Iwata Kingsway General Insurance Company
Stephen Malach Malach, Fidler
William McCorriston Hughes, Amys
Shonna Neil Financial Services Commission
Phillippa Samworth Fireman, Regan
Dragana Sivac Financial Services Commission
Frederika Rotter Financial Services Commission
Gary Spector Spector & Partners
Heather Trojek Financial Services Commission
Catherine Zingg Flaherty, Dow, Elliott
Approval of Minutes
The Forum approved the summary of discussions from Friday, May 29, 1998.
Donna Brown announced that Jim Malcolm has accepted a position as Executive Coordinator with the Ontario Court (Provincial Division). All members lamented his departure, thanked him for his tireless efforts in assisting this forum in the past five years, and wished him well in his new endeavours.
Mediation
Paula Buchok reported on the status of the mediation section. Intake was slow during August, but vacations meant that while there was no catch up on any backlog, neither was there an increase in the backlog. The Commission forecasts receipt of 10,000 applications for mediation during 1998, and with the present complement of 26 mediators, feels that there is no need to increase its complement at this time. The full complement is 38 mediators positions which are presently filled, but whose occupants are on secondment, maternity or other leave.
Heather Trojek spoke on the Mediation Branch's Intake training sessions. Some spots are still available, and it is hoped that videotapes of these sessions, as well as the handouts, will be available for dissemination or viewing at the Commission in the future. The focus will be on completion of the application forms, documents to be submitted, and preparedness for the mediation. It is expected that the Mediation Branch will conduct a similar seminar on responses to mediation for insurers in the near future. A Forum member asked if there were written guidelines with respect to what documents and materials are required for the application to be considered "complete". The member cited inconsistent responses from mediation caseworkers where the material submitted on each case was identical. The member was advised that written directives would be available.
The forum member suggested that parties and mediators should be more amenable to conducting combined mediations where there are concurrent issues with a tortfeasor or collateral benefits carrier. The Mediation Branch indicated a willingness to do this.
Shonna Neil of the Mediations Branch clarified the "second application" procedure of the branch. Where the branch receives a second mediation involving the same parties (including representatives) within 30 days of the first application, a new mediation file is not opened, but the issues raised in the new application are added to the existing one. Where the Application is received later, or involves different parties (e.g., – a service provider), it is open to the mediator to combine the applications, provided the parties consent.
A forum member asked why the insurer client does not receive a copy of the Mediator's Report when counsel represents the insurer. A previous chair of the forum advised that insurer's counsel specifically asked the Commission to report on mediations in represented insurer cases in this was some years ago.
Arbitration
Arbitrator Rotter reported on the Arbitration Statistics. Intake over the last time period has been stable, with some decrease. The average delay from the Hearing to Decision is now at 109 days (this is based on the last three months).
A forum member noted that an oral decision was released recently, and inquired whether this would be used more frequently. Senior Arbitrator Rotter noted that the Arbitration Unit was discussing oral decisions generally in the hope of developing some guidelines for their use. In the case that was recently reported on the Internet, there was a court reporter present, so that the oral decision was recorded, and could be reproduced in the event of an appeal.
With respect to scheduling, pre-hearings are felt to be current, with no appreciable delay in setting dates. With respect to Hearing dates, dates are currently being set approximately one year after the date of the pre-hearing. The Commission hopes to add three more arbitrators later this Fall, in the hope that they can then start offering earlier dates starting in January. This is subject to approval. If and when these additional resources become available, the Commission will offer earlier dates first to cases currently set for Hearing, and then the dates will be made available to the pre-hearing arbitrator. Commission noted the tremendous success of settlement efforts by an arbitrator during the week before a Hearing. They also noted that the Commission will make an arbitrator available, if requested, at an earlier stage, to discuss settlement with the parties.
A forum member asked whether the Commission had any statistics which followed up on failed mediations, and the eventual disposition of them. How many of these cases are going to court? It was noted that the Commission was planning a survey of its users, and could specifically target failed mediations to see if some statistics could be developed. It was noted, however, that the statistics are no more reliable than the interest in responding to such a survey generally.
Appeals
At present, there are only eight decisions pending on appeal. With respect to Judicial Review, there are approximately 12 cases pending. The general time frame for an appeal is approximately one year from the time the file is opened until it is closed. A forum member asked whether copies of the Judicial Review endorsements and decisions could be put on the Internet site. It was felt that this could be discussed with DR management.
The Adams' Report
In May, the Forum struck a committee to consider the Adams' report and give the Commission recommendations based on this report. The committee consisted of Gurcharan Anand, Peter Cozzi, Stanley Pasternak, Stephen Malach, Harry Brown and Eric Grossman. Although the committee members were apparently sent a copy of the "executive summary" from the Adams' Report, none of the forum members received either the summary or the report. The Commission provided a copy of the executive summary for the committee members at the meeting.
The Chair pointed out that the Commission had struck an internal committee called "The Dispute Resolution Steering Committee", which was to review the Adams' Report and advise Dina Palozzi on the priorities and feasibility of implementation of this report. This committee was composed of Commission staff, chaired by Elisabeth Sachs, and had outside involvement from Industry Forum, the insurance industry, a consumer group representative, and the chair of this committee. The Chair reported that as this was an internal document, which the Superintendent was still considering, he was not at liberty to discuss its contents, other than to point out that the delay in arbitrations was the primary focus of the Steering Committee. Some forum members felt that as their representative on the Steering Committee, it was the chair's obligation to report back to this forum on the proposals of the Steering Committee. The chair undertook to provide copies of the complete Adams' Report to the subcommittee members, and to arrange a tele-conference meeting to discuss the Adams' Report within the next week. Commission members made it clear that the Superintendent will consider this forum's input before implementing any of the Adams Report recommendations.
S.287 of the Insurance Act
A Forum member expressed concern with the format of decisions in which the impact of s. 287 of the Insurance Act was not, or inadequately considered by the arbitrator. After a review of those concerns, it was felt that this problem could be best addressed by a committee to report to the Minister on the 2 Year Review of Bill 59.
Bill 59 – Two Year Review
It was decided that the Adams' Report subcommittee would also form the Bill 59 – Two Year Review Committee.
Next Meeting
The next meeting for the Bar Dispute Resolution Group Forum is scheduled for Friday, November 27, 1998 at 1:00 PM.
Financial Services Commission of Ontario