Council Forum Minutes of Meeting - February 18, 2000

Present:
Gurcharan Anand Anand, Levy, Jebb
Harry Brown Ianoco, Brown
Peter Cozzi Barrister & Solicitor
Michael Gillen Schwarz, Gillen
Eric Grossman Zarek, Taylor, Grossman, Hanrahan
Nestor Kostyniuk Kostyniuk & Greenside
Mark Koyama Hughes, Amys
Steve Malach Malach & Fiddler
Janice Mackintosh Financial Services Commission
Shonna Neil Financial Services Commission
Lawrence Blackman Financial Services Commission
Phillipa Samworth Fireman, Regan, Samworth
Gary Spector Spector & Partners
Joan Takahashi Borden & Elliott
Sharon Warden Borden & Elliott
Catherine Zingg Flaherty, Dow, Elliott, Chadwick & McCarthy

1. Minutes
   
   Minutes of December 3, 1999 approved and adopted
   
   
2. Mediation - Shonna Neil
   
   Statistics : The pending mediation statistic is up significantly from the previous report. This is due to a significant increase in the number of applications.
   
   A number of mediators have left the Commission and four new mediators have been hired. Four more mediators will start at the beginning of March.
   
   The reduction of mediators and the increase in the volume of applications accounts for the delay in the appointment of mediators. Currently, the average time from receipt of a fully completed application until file perfection. Another twenty days to appointment of a mediator.
   
   
3. Arbitration - Jan Mackintosh
   
   Lawrence Blackman is now the acting senior arbitrator, since Frederika Rotter has accepted a one year secondment in legal branch.
   
   Tania Wacyk has been hired as a contract arbitrator. She had previously been a pre-hearing roster arbitrator.
   
   Statistics: The actuaries have now indicated that the actual receipt of applications are above the projection. The average age of decisions is 89 days and the average age of decisions pending is 59 days. One of the previous problems was typing. That difficulty has now been addressed and the typing turnaround time has been reduced to under five days.
   
   Pre-Hearings are available in April and Hearings in May.
   
   There are now 18 arbitrators, of which 6 are contract. The impact of the newest projections from the actuaries is being studied, so that it is likely that the ultimate compliment will be above the 11 projected by the end of this year.
   
   The new website eventually will include a listing of decisions of private arbitrations. All members are asked to forward copies of private mediations to Jan Mackintosh. There was an industry bulletin asking companies to forward copies to the Superintendent of Insurance.
   
   
4. Appeals & Judicial Review
   
   Most decisions have been outstanding less than 50 days.
   
   Recent JR decisions reviewed. David Draper's chart is available from David or from the Chair. The chair also has copies of all of the endorsements and decisions.
   
   
5. Educational Seminar - Jan Mackintosh, Lawrence Blackman & Steve Malach
   
   The flyers were distributed and Steve emphasized the early bird and discounts for groups.
   
   
6. Settlement Discussions - Jan Mackintosh
   
   This is with respect to the discussions that occur in the week before the Hearing. The Commission attempted to move the discussions to two weeks before the Hearing. Due to the inability of counsel to address the case two weeks before the Hearing. The Commission moved the discussions to the week before the Hearing. No settlement discussion will be booked later than 1:00 PM in the afternoon, on the Friday before the hearing.
   
   Nestor pointed out that from time to time it gets difficult to schedule this in the week before the Hearing. The Commission encourages settlement discussions earlier than the wee prior to the hearing but, endeavour to locate an arbitrator or mediator that can meet when counsel are available in the week immediately prior to the scheduled hearing.
   
   Jan Mackintosh pointed out that mediators are regularly used in this process. Jan asks that counsel notify the Commission well in advance of the week before the Hearing when counsel can conduct the settlement discussions.
   
   
7. New Practice Code - Jan Mackintosh
   
   The SPPA and the two year review legislation are still pending, so the completion of the revisions to the Code must await these initiatives.
   
   There have been amendments to the SABS to conform with changes to the Insurance Act.
   
   Steve Malach pointed out the decision of Mr. Justice Archibald in Machin (96-CU-97750) that the insured was bound by the findings of the arbitrator in a subsequent case involving the insurer, but in a different capacity. (Note from the chair: this is difficult to reconcile with the concepts of res judicata and issue estoppel. See, for example, Sopinka, et al., The Law of Evidence in Canada, Second Edition, 1999, Butterworths.)
   
   
8. Next Meeting
   
   March 31, 2000 @ 1:00 PM