Present:
Name Firm
Gurchuran Anand Barrister & Solicitor
Donna Brown Financial Services Commission of Ontario
Harry Brown Iacono, Brown
David Draper Financial Services Commission of Ontario
Eric Endicott Financial Services Commission of Ontario Michael J. Gillen Schwarz, Gillen
Janice Mackintosh Financial Services Commission of Ontario
Stephen Malach Malach & Fidler
Bill McCorriston Hughes, Amys
Stuart Mutch Financial Services Commission of Ontario
Andrew Murray Lerner & Associates
Shonna Neil Financial Services Commission of Ontario
Frederika Rotter Financial Services Commission of Ontario
Dragana Sivac Financial Services Commission of Ontario Chris Schnarr Cassels Brock & Blackwell
Gary Spector Spector & Partners
Claudia Storto Samis, Blouin, Dunn
Mary Jo Sullivan Financial Services Commission of Ontario
Joan Takahashi Borden & Elliott
Stanley Tessis Laxton, Glass & Swartz
Derek Wilson Zarek, Taylor, Grossman
Catherine Zingg Flaherty, Dow, Elliott, Chadwick &
McCarthey
Andrew Murray from Lerner & Associates in London was connected by teleconference.
- Minutes
The Chair apologizes for the lack of minutes from the last meeting. Jan Mackintosh has supplied copies of her notes from the last meeting, and they are attached to these minutes.
- Mediation
Shonna Neil: The usual statistics were reviewed. 75% of all mediations are by telephone. Intake has been steady over the last three months. The statistics have not been amended yet to reflect the cases that simply don't proceed. As of yet, the numbers of no jurisdiction cases are not broken down.
- Arbitration
Donna Brown: Intake is down and the cases pending have been steadily reducing. Settlements are continuing at relatively the same pace.
F. Rotter: The average age of decisions pending is 59 days. This is due to the additional arbitrators available. 32 decisions are pending at present. The average age of the time from opening to decision is going up, but that is due to the old ones. This reflects files caught in the initial backlog. This is expected to continue until late 1999, when the balance of backlogged files have been completed.
The average age from entry to decision of applications cannot now be calculated; however given the availability of early pre-hearing and hearing dates, as well as the decreased decision time, the figure is substantially less. There are no statistics to show the geographical location of where applications are commenced. That will be addressed in future case management software. The statistics do not indicate how many cases actually go to a hearing. They also do not indicate how many are out of town.
Andrew Murray: Mr. Murray indicated that in London Mediations overwhelmingly proceed by way of litigation. He felt that part was what you're used to, as well as the scheduling problems, and the likelihood that if arbitration is selected the Insurer will appoint a Toronto counsel. Another member pointed out that if there is no difference with respect to costs, counsel will likely choose court.
Steve Malach: Mr. Malach suggested that there are still a lot of advantages to going to arbitration. Suggested that the Commission should do some marketing /outreach. The Defence bar also does not want to use this forum, according to Harry Brown. He says if there is a problem with collateral benefits, he tries to take them out of here – makes deals to do so. There is a huge drop in frequency of accidents in the last three years.
The Letter from Dina Palozzi dated March 10, 1999, and report was distributed.
We now appear to have appropriate resources to meet early dates for Hearings and pre-Hearings.
The Unit has a commitment to mete out consequences for parties who do not comply with productions. Counsel are urged to prepare for the case before filing the Application for Arbitration.
- Appeals & Judicial Review
David Draper. There are only 6 or 7 decisions pending at present. Decisions are coming out more quickly. The life of an appeal has come down. The Commission has prepared a summary of decisions. It does not appear that cases under judicial review will be so noted on the Internet. At present this summary and the endorsements/decisions will not appear on the Internet on the Commissions Web site. David will update this list on a regular basis. If anyone is aware of decisions not on this list, please notify David Draper or Jan Mackintosh.
Steve Malach is preparing a compendium of private arbitration decisions.
- IRB's after 104 weeks – Bill 164
Harry Brown: Where the dispute arises before the 104 weeks, what happens when the Hearing will take place after 104 weeks. There is a bulletin out. The Insurer is not entitled to the post-104 week DAC unless the eligibility has been established up to that point. The Commission has concerns about splitting the case up between the issue of the IRB's and then doing a hearing on the LECB's at a later time.
- Financial Services Commission of Ontario – Statement of Priorities
Steve Malach attended this meeting on behalf of this Forum on March 3, 1999. Steve prepared a summary of issues that were of concern to this Forum. A copy of this is attached to these minutes.
- A Further Educational Programme
Stan Tessis asked if there was a plan to do another educational programme. All members felt that we did not want to do this with the Law Society.
An Education Committee Struck – Steve Malach, Harry Brown, Catherine Zingg, Chris Schnarr & Joan Takahashi
- Steve Malach will be the Chair. Anyone having any ideas for the next educational session should give their ideas to Steve.
- Practice Code Amendments
Committee Struck – Gurchruan Anand, Michael J. Gillen, Joan Takahashi, Phillippa Samworth. Anyone with ideas for amendments to the Practice Code should speak to Joan Takahashi or Gurchuran Anand.
- Format of Decisions on the Internet
Mary Jo Sullivan: Decisions on the Internet web site will now be in Acrobat's "PDF" Format. All new decisions will be reported in both the "HTML" and "PDF" formats. The Commission will start to upgrade all the previous decisions to the "PDF" format. A copy of Adobe Acrobat Reader will be available for download from the site. Once the "PDF" format is downloaded to your computer from the Internet, it can be viewed and printed as it appears in the original. All pagination and formatting in this format are preserved.
COUNSEL FORUM MEETING - FRIDAY, JANUARY 29,1999
Follow-Up Items
Follow-up items from Counsel Forum:
Mediation:
- Counsel arc seeking copies of the materials that were prepared for the training sessions on the mediation intake project, Specifically they are seeking the particular intake rcquircmcnts and standards that are being applied to mediation applications.
- They would like to have these standards posted on the Wcbsite.
- Counsel suggested that a good way to inform (and alert) parties to the new shorter time lines in arbitration wouid be to add a paragraph to the standard letter that goes out after a failed mediation informing users of the availability of pre-hearing dates within 6 to 8 weeks of the registration of a completed application and the availability of hearing dates within 4 months of the pre-hearing. There was general agreement that this was a good idea.
Arbitration:
- Thcrc was a further rcqucst for numbered paragraphs in the decision. ( David Evans later explained to me that there were numerous complex formatting rules associated with numbered paragraphs which would be difficult for the unit to follow. He also noted that Quicklaw provides numbered paragraphs, if counsel are desperate for them.)
- David wondered whether the people at Quicklaw would agree to allow the Commission to post their decision format into our Website so that the paragraphs would be numbcrcd with Quicklaw doing all of the formatting, however, there mayi be some time lag in cases being completed at the Commission and being formatted by Quicklaw for inclusion on their service.
- Production issues, Counsel Forum urged arbitrators to deal with outstanding production issues at the pre-hearing and to impose time lines and interim expense penalties against any party who failed to produce items in advance of the pre-hearing. Counsel indicated that the culture to let production issues slide would not be changed without rigorous enforcement by the arbitrators at the pre-hearings and in their pre-hearing letters.
Appeals:
- Eric Grossman observed that the status of cases under appeal was not current on the Websitc. He observed that this has led to some embarrassment because an appeal decision had been issued but had not been noted on the status of the arbitration case on the Website.
- Counsel forum asked whether it would be possible to post a list of the current cases pending on the Website.
- Counsel Forum asked whether the summary of Judicial Review Applications prepared by David Draper could be posted on the Website.
- Meeting - March 26, 1999
Financial Services Commission of Ontario