| Members Present: Ivan Luxenberg (Chair) Catherine Zingg Eric Grossman George Kanellakos Nestor Kostyniuk Liz Iwata Stanley Pasternak |
| Attendees: FSCO David Draper Susan Sapin Lawrence Blackman John Lobo Margaret Orlander Alex Turko Bruce Green |
Approval of Minutes – Meeting of September 30, 2005
The Minutes were approved as submitted.
Business Arising from Minutes
None.
Other Business
These items were discussed first to accommodate Lawrence Blackman, who had to leave early:
- Binding Authority
- Face to Face Pre-hearings
- Pleadings
Lawrence raised concerns on behalf of the Arbitration Unit, regarding recent practices at pre-hearings, where it appeared representatives were increasingly attending without binding authority to settle, converting in-person pre-hearings to telephone conferences, and filing "boiler-plate pleadings" (i.e. Application and Response Forms).
Much lively discussion ensued. There appeared to be general agreement among Counsel Forum members on the following points:
face-to-face meetings are more useful particularly if productions have been provided in advance as required and arbitrators are active in encouraging participation by applicants and insurance company representatives, and engaging the parties in settlement discussions;
Legal representatives and insurance company representatives attending the pre-hearings should at the very least have binding authority to settle the issues in dispute in the arbitration, and should be prepared to entertain discussions about full and final settlement; this is a Companies Forum issue and should be raised there, and arbitrators should enforce it. (Susan advised that the Pre-hearing notice has been amended to emphasize the importance of binding authority to the parties);
"Boilerplate pleadings" have developed because insurance company representatives, in particular, are concerned that if they omit issues they will not be able to add them later, and often counsel are required to prepare Responses to FSCO deadlines without access to the file or details. These concerns need to be balanced with the desirability of particularized, detailed pleadings, which are more helpful to arbitrators at the pre-hearing.
Counsel forum members expressed a concern that the issue of timely Responses and the consequences of untimeliness are not dealt with consistently by all arbitrators, and a "grace" period should be allowed given the considerations noted above;
Auto Insurance Reform Update - Margaret Orlander and Bruce Green
Fourteen new OCF forms have been created (by FSCO committee with insurer and legal representation) and will be released in March, to accommodate the elimination of the DACs; the consent language has been amended and same-sex partner references removed. OCF 17 Notice of Stoppage has been eliminated and incorporated into a new OCF 25, a new form OCF 26 – Voluntary consent for pre-claim examination has been developed.
Eric Grossman raised the difficulty created by the Fernandes Baron Decision, which held that insurers had no remedy under the Insurance Act to challenge the findings of a catastrophic impairment DAC; David Draper advised there is currently no intent to amend the Act but the issue has been raised.
There was general consensus that now that DACs have been eliminated, applications would increase and FSCO would need a fast-track process to deal with the new issues anticipated
DRS Statistics – Mediation - John Lobo
There were fewer Applications for Mediation in 2005 than in 2004, results were similar and average processing time was lower. Face-to-face meetings were down to 4% from 6% despite active encouragement; some mediators noted resistance to face-to-face meetings from insurance company representatives.
More applicants were represented by law firms and supervised paralegals in 2005 than 2004, the reasons are not entirely clear.
Eric Grossman noted there were fewer NJ closures; John Lobo explained this could be due to a decrease in service-provider or single-issue files, and explained that applications were reviewed individually to determine whether they should be accepted.
Applications for Arbitration continue to increase and pre-hearings cannot be scheduled within the promised 6-8 weeks from date of Application. Available dates will be increased effective March 2006.
The Arbitration Unit has hired additional case administrators, arbitration assistants and arbitrators to handle the backlog, and two more permanent and two one-year contract arbitrator positions have been advertised, to fill the maximum complement of 21 arbitrators.
DRS Statistics - Appeals and Judicial Review -David Draper
There has been an increase in appeals with 7 filed in the past month. Outstanding judicial review decisions were noted.
DRS Operational Changes and Update
Staffing:
as above.
Website:
nothing new to report
Status of Claims Forms and DRS Forms - Draft New Application and Response Forms;
For mediation and arbitration, to accommodate elimination of DACs and other legislative changes to take effect March 1, 2006 - presented for input by Susan.
Next Meeting: Friday March 31, 2006 at 9:30 a.m.
Financial Services Commission of Ontario