Counsel Forum Minutes of Meeting - January 28, 2011

Members Present:


Audrey Ramsay (Chair) Tom Golfetto
Michael Blinick Chris Georgakopoulos
Stanley Pasternak  
Joseph Rizzotto  
Katherine Kolnhofer  
Kadey Schultz
Catherine Zingg  
Jon Schrieder  
Philippa Samworth  
Eric Grossman  

FSCO Attendees:

Via Conference Call:

Asfaw Seife Joan Takahashi
John Lobo Stanley Tessis
Elizabeth Nastasi Kevin Doan
Amanda Marshall  
Sivan Raz  
Steven Raphael  
Christina Pearce  

Marilyn Monteiro


1. Approval of Minutes – Meeting of November 26, 2010
Approved as amended.
2. Stakeholder Consultations on FSCO’s Strategic Priorities:
Tom Golfetto, Executive Director and John Lobo, Mediation Manager gave a presentation on FSCO’s Strategic Priorities discussing FSCO’s Priorities and key performance indicators :  Continuous Service Improvement, Risk Based Delivery and to Foster a Co-Ordinated National Approach to Regulatory Issues. The discussion included FSCO’s approach to achieving its priorities and how these outcomes would be measured, including the use of a FSCO scorecard.
3. Arbitration Streamlining Brainstorm:
Senior Arbitrator Nastasi informed members that the arbitrators had met as a group to discuss potential initiatives designed to provide more streamlined services during a period of increased caseload. Some of the initiatives being considered include increase the overbooking limits on both hearings and pre-hearings; opening up Friday as a potential day to conduct pre-hearings; opening up extra time slots during the day to conduct pre-hearings; start out of town hearings on Tuesdays; book all settlement discussions at the same time the hearing is booked - this will save time for case administrators.
4. Pre-Hearing Reminders:
Senior Arbitrator Nastasi reminded members to provide as much notice as possible when a PH has settled; parties should be initiating the call to book their pre-hearings - do not wait for case administrator to call you; a barrage of materials are not needed at early stages, do not send boxes of material at the PH stage to FSCO - should be sent to the other party and a case summary to FSCO.
5.  DRS Status Report – Statistics and Staffing Updates
John Lobo and Elizabeth Nastasi provided statistical updates for Mediation and Appeals with reference to the reports distributed to members.
Intake Annual Jan 2010 – Dec 2010 as compared to Jan 2009 – Dec 2009:
Received: 27,843 – 20,917
Closed: 18,350 – 15,446
Open Pending: 22,118 – 12,509
Processing Time:
Complete: 116 days – 46 days
Incomplete: 127 days – 54 days
Perfected to Assign: 96-81 days
Assigned to Report: 70-66 days
Full: 62% - 56%
Partial: 8% - 11%
Fail: 29% - 32%
Posted for 7 mediator fixed term contract positions.
The Mediation Pilot Project:
An increase in the number of mediation meetings that may be conducted by mediators – mediators receiving 12 new files per week, along with the introduction of a “duty mediator” and an “overbooking system”. We are halfway through the 6 month pilot.
Team Leaders assisting with overbooking and mediations.
The Electronic Meeting Scheduling Pilot Project:
Parties will be notified electronically when their mediation files are ready to be assigned to a mediator. An electronic-online calendar system accessible to the parties will allow them to schedule, reschedule, or cancel meetings, with Rules for booking embedded in the calendar. When parties disagree or take no action, FSCO will book date. FSCO will retain ability to manage and administer the schedule. The electronic calendar can be used by parties and FSCO to communicate as notification – no issues or dispute, settled ability to generate reports. Anticipated to be rolled out summer of 2011 rather than April 2011.
Arbitration statistics were not included in this package as anomalies were discovered in some sub-categories of the report.
Applications received increased by 1 to 5 for the period October 2010 to December 2010 from 4 in the previous period. The number of decisions issued increased from 4 in the period of July 2010 – September 2010 to 5 in the period October 2010 – December 2010. The median age of decisions fell from 80 days to 48 days over the previous period.
Judicial Review:
Updates since November 2010
Judicial review of PASTORE and Aviva Canada Inc., (FSCO P09-00008, December 22, 2009): see previous memo:
  • Note: by order dated January 19, 2011, the OTLA was added as an intervenor: Aviva Canada v. Pastore and Financial Services, 2011 ONSC 422
  • Hearing scheduled for Wednesday, February 23, 2011

    Judicial review of D.F. and Wawanesa Mutual Insurance Company, (FSCO P06-00029, April 15, 2008)
  • Hearing tentatively scheduled for March and April 2011.

    Judicial review of Aviva Canada Inc. and SHAUGHNESSY, (FSCO P07-00036, October 2, 2009) [whether an insurer can dispute a CAT DAC at FSCO]
  • Hearing tentatively scheduled during week of March 7, 2011.

    Judicial review of Lahtinen and Wawanesa Mutual Insurance Company, (FSCO P10-00001, March 11, 2010) unreported letter decision, in which the Director’s Delegate refused an appeal of an interim decision made during a pending arbitration hearing. Arbitrator granted an adjournment after full day of hearing dealing with preliminary issues, over insurer objections and to address late production by Applicant. Applicant sought an order on that point, as well as a remedy for the “lack of order on whether or not the Applicant herself is required to be present every single minute of the Arbitration,” a direction that a more experienced arbitrator be appointed to conduct the hearing, and remedies for various production orders. The adjournment was to September 2010.
  • January 19, 2011 – Application for Judicial Review Hearing

    The application was dismissed on January 19, 2011. Reasonableness standard. “Clearly the appeal was premature and ought not to have been brought.” No reasonable apprehension of bias: “there was no basis whatsoever for the making of this allegation.” Regarding interim appeals, the court stated: The whole scheme of the arbitration system set up under the Insurance Act is to provide for an expeditious and inexpensive process for the resolution of specialized disputes. Preliminary or procedural rulings designed to facilitate a hearing yet to occur are not final determinations of issues in dispute. Reviewing courts, ab-sent exceptional or extraordinary circumstances should decline to consider reviews of such decisions. There were no such exceptional or extraordinary circumstances here. Fragmenta-tion of proceedings should be avoided unless such circumstances exist. $8500 in costs to Wawanesa. Lahtinen and Wawanesa Mutual Insurance Company et al., Divisional Court File No. 178/10. (Cunningham RSJ, Jennings J, Wilton-Siegel J.)

    Judicial review of Turner and State Farm Mutual Automobile Insurance Company, (FSCO P06-00025, July 24, 2008 [causation]
  • January 4, 2011 – Order dismissing Application for delay. Applicant seeking order setting aside dismissal for delay.

    Judicial review of MARYASIN (The Estate of) and ING Insurance Company of Canada, (FSCO P08-00011, November 6, 2009), where he Director’s Delegate upheld the arbitrator’s finding that counsel Mazin was responsible for the insurer’s expenses for bringing application in Estate’s name.


  • Hearing date: December 14, 2010; decision date: December 20, 2010

    Applying either standard of review, the application should be dismissed. Court did not con-sider the merits of the conflict of interest issue (counsel purported to represent daughter of deceased but urged costs should be paid by her) or the costs order. Sole issue was the nulli-ty of the proceeding. Only person who could have made the claim was the daughter and not the estate. An amendment if granted would have substituted a party with one legal interest for another with a very different legal interest. Arbitrator correct in finding that the only cure was a new application, as was Delegate in upholding arbitrator. $5000 in costs to ING, personally payable by Mazin. Maryasin (The Estate Of) v. ING Insurance Company of Canada et al., Court File 573/09, December 20, 2010 (Molloy, Sachs and Herman JJ.)

    Judicial review of OWUSU and Sarpong and TD Home and Auto Insurance Co., (FSCO P08-00003 and P08-00004, February 2, 2009), where the arbitrator’s dismissal of the IRB claims and assessing of expenses against appellants was upheld. 
  • Hearing date: November 29 and 30, 2010: Decision date: December 1, 2010

    The application was dismissed. Reasonableness standard but decision correct in any event.

    Burden of proof: “The burden is on the applicant to establish the elements required to show entitlement to benefits. There is no presumption of entitlement created in the legislation, nor should one be implied.” Evidence: Arbitrator not bound to accept uncontradicted medical evidence: reports were based on entirely subjective descriptions, no objective evidence supporting, so credibility important and arb found there was none. Transcripts: “There is clearly no legal obligation on the successful party in an arbitration to pay for a transcript for the assistance of the unsuccessful party’s appeal. Likewise, there is no breach of procedural fairness in requiring appellants to pay for their own transcripts if they are required for an appeal.” Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627 (MacKenzie, Molloy, and Harvison Young, JJ.)

    Judicial Judicial review of Uribe and Wawanesa Mutual Insurance Company, (FSCO P09-00021, February 5, 2010). The issue was whether, after re-filing an income tax return, “the amount of the income [pre-accident] may be adjusted to reflect any change in the amount of the person’s income reported or determined” for determining IRBs under s. 64.1(2). Note: relevant provision in New SABS has been amended. See now ss. 4(5) and (6): (6) has been revised so that the adjustment for income is allowed only “to reflect any subsequent change in the amount determined by the Canada Revenue Agency...”
  • Application served March 5, 2010; Hearing date: October 25, 2010

    The application was dismissed. Standard of review reasonableness. “For the reasons articulated by the Director’s Delegate, his interpretation is consistent with the clear language of s.64.1(2) which includes the word “reported” as well as the word “determined”. It is also consistent with the purpose of the section viewed as a whole. While s.64.1(1) penalizes a claim-ant who fails to report income to Revenue Canada, subsection (2) is remedial and allows a claimant to “come clean” to Revenue Canada and have his or her income replacement benefits readjusted. If the claimant does not come clean, no such readjustment can occur. In our view, the Director’s Delegate’s interpretation of s.64.1 is not undermined, but is reinforced, by the published amendment to the Statute Accident Benefits Schedule referred to in the applicant’s factum.” Wawanesa Insurance v. Uribe, 2010 ONSC 5904 (CanLII) (Swinton, Sachs and Nadeau JJ.) [A brief reference was in the last memorandum.]
6. Report from DRPC Subcomittee:
Eric Grossman gave an update on DRPC Sub-Committee. Members met twice via conference call to discuss areas of improvement and make recommendations for amendments to the Practice Code. The report was circulated and discussed at the meeting. The group was in agreement that the goal should be to keep the Rules simple and that changes should not be made unless absolutely necessary.
7. Mediation Backlog – Feasibility of Deputy Mediators or Senior Counsel:–
Catherine Zingg suggested to members about using an experience senior counsel to assist with the mediation backlog. Courts have had similar problem and they have used legal counsel to work through the backlog. This system proved to be very successful and 60% of mediations were resolved.
8. Applicability of definition of “incurred” to injury post September 2010/pre-September 2010 policy: Is there a need to amend transitional provision?
Agenda deferred. (J. Shinehoft)
9. It’s Raining CATS and Dogs (CLEs/Programs):
Pamela Samworth informed members of upcoming CLEs/Programs – It’s Raining CATS and DOGS presented by the Medico- Legal Society of Toronto scheduled February 22, 2011. She will be one of the program chairs and discussion will be on to learn from experienced doctors and lawyers how to assess, understand, and litigate catastrophic claims with this program.
10- The Medico-Legal Approach to Lies, Deception and Fabrication (CLEs/Programs):
Eric Grossman informed members that he will be on a panel hosting a conference on the Medico-Legal Approach to Lies, Deception and Fabrication. Event is scheduled on April 15, 2011.
11. Invitation Proposal of Richard Halpern to March 25, 2011 meeting:
Audrey Ramsay suggested to members to extend invitation to Richard Halpern at the next Counsel Forum Meeting. Ongoing discussion.
12. Other Business
Next Meeting – March 25, 2011