Counsel Forum Minutes of Meeting - March 25, 2011

Members Present: 

Guests:

Audrey Ramsay (Chair)  Elizabeth Faggiani
Michael Blinick    Victor Cherniavsky
Joseph Rizzotto        
Jason Singer  
Eric Grossman  
Jon Schrieder  
Tracy Austin  
David Raposo  
Catherine Zingg  
Stanley Pasternak  
Albert Conforzi  
Joan Takahashi  
 

FSCO Attendees:  

Via Conference Call:   

John Lobo      Katherine Kolnhofer  
Elizabeth Nastasi    Nestor Kostyniuk
Shayna Wiesenfield      
Sivan Raz  
Christina Pearce  
 

1.  E-Scheduling Demonstration/Presentation:

Elizabeth Faggiani and Victor Cherniavsky provided a demonstration on e-Scheduling. Presentation dealt with how to use the e-Calendar including booking, re-schedule, relating files, close a file, report or settlement processes. Questions and Answers session followed.

2.  Approval of Minutes – Meeting of January 28, 2011 

Approved as amended.

3.  Auto Update/Discussion:

Sivan Raz took questions/feedback from members who asked general questions on "What Was New" in the Auto Reform Industry. Discussion around the definition of catastrophic impairment project followed; questions were raised regarding whether the $2000 assessment cap was going to change; questions regarding whether the panel’s report has been presented to the Superintendent; the consultation process following the presentation of the report was discussed.

4.  DRS Status Report – Statistics and Staffing Updates

John Lobo and Elizabeth Nastasi provided statistical updates for Mediation, Arbitration and Appeals with reference to the reports distributed to members.

Mediation

Monthly: February 2011
Received: 1,725
Closed: 1,562
Open Pending: 23,336
Processing Time:
Complete: 192 days
Incomplete: 196 days
Perfected to Assign: 74 days
Assigned to Report: 73 days
Settlement:
Full: 64%
Partial: 7%
Fail: 26%
Intake:
Annual: March 2010-February 2011
Received: 28,043
Closed: 18,515
Open Pending: 23, 347
Processing Time:
Complete: 135 days
Incomplete: 142 days
Perfected to Assign: 93 days
Assigned to Report: 70 days
Settlement:
Full: 63%
Partial: 8%
Fail: 29%
Staffing:
Interviews completed – approval process to offer commenced.
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:
Senior Arbitrator Nastasi reported on the Arbitration and Appeals statistics.
Counsel requested in the future the arbitration statistics also include the following:
  1. Separate out motions and expense hearings from hearings when doing he decisions pending.
  2. Set out how many decision are pending at the time of the report
  3. Timeline chart - so time from registration to PH to hearing to decision
Liz noted that over the past year arbitration unit have been working on having decisions issued in a more timely way and that we have been successful in staying on top of the pending dates.
She encouraged counsel to call or write if there is a case that has been outstanding for a while.
Appeals:
Nothing new to update.

Judicial Review:

Updates since January 2011
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 held Wednesday, February 23, 2011
  • Still awaiting decision
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 held March 8, 2011.
  • Judicial review dismissed: the Divisional Court concluded that the Director's delegate’s decision to allow the insurer to challenge the CAT DAC at FSCO was      reasonable. The Court of Appeal decision in Liberty Mutual v. Fernandes (2006), 82 O.R. 3d 524 is controlling. The CA intended to provide guidance. Shaughnessy v. Aviva Canada Inc. et al, 2011 ONSC 1566 (CanLII)
  • On March 22, 2011, Ms. Shaughnessy served notice of motion for leave to appeal to the Court of Appeal
Application for judicial review of GONSALVES and Certas Direct Insurance Company, (FSCO P09-00036, January 24, 2011) was served March 9, 2011. The Director’s Delegate reversed the arbitrator’s order that had stayed the scheduled arbitration because it would be unfair to proceed to arbitration without an IE.
  • Hearing date has been set for June 27, 2011.
In Eldridge and AXA Insurance (Canada), (FSCO P07-00006, August 11, 2008) [see August 12, 2010 memo] deadline to perfect is April 29, 2011; parties are trying to reach agreement on contents of the Application Record to be filed for JR.
In Augello and Economical Mutual Insurance Company, (FSCO A07-001204, December 18, 2008), where the Director’s Delegate upheld the arbitrator’s decision that the Desbiens approach was correct in determining catastrophic impairment, the Applicant insurer perfected JR on January 28, 2011. FSCO factum to be prepared.
New Judicial Review application received in Bisnath and State Farm Mutual Automobile Insurance Company, (FSCO P10-00018, January 6, 2011). In this letter decision, the delegate refused to acknowledge an appeal of Bisnath and State Farm Mutual Automobile Insurance Company, (FSCO A08-000007, October 27, 2010). Applicant sought benefit payment regardless of merits on basis of faulty termination. The Arbitrator held that he was bound by Stranges v. Allstate and Turner and State Farm. Appeal rejected on basis that the issue was no longer novel and there was little apparent strength to the appeal, in light of Stranges. Furthermore, the issue had been dealt with at the FSCO appeal level in Yogesvaren and State Farm Mutual Automobile Insurance Company, (FSCO P09-
00042, October 28, 2010).
  • Application received March 19, 2011
Turner and State Farm Mutual Automobile Insurance Company, (FSCO P06-00025, July 24, 2008)
  • Hearing likely in November/December 2011
5. "Doctored" Reports:
Senior Arbitrator Nastasi reported that a recent unit meeting arbitrators reported two separate hearings in which in the middle of testimony by a doctor or assessor, it became clear that the report issued / produced by the Clinic or assessor was not the same report created by the doctor / assessor on the witness stand. Liz put the issue out to the group to assess whether this has been a recent issue or new trend that counsel have also experienced.
Counsel Response:
In the past IR adjusters would contract out to individual assessors and defence counsel could potentially request certain doctors that they liked to work with BUT today - to save money almost 100% of the assessment work is farmed out to Brokers leaving very little choice about who will do the assessment.
Stan P. - 100% of ALL assessments are "doctored" - in that the actual doctors and assessors are not able to do MOST of the report for $2000. The result is that the clinic administrators are the ones setting up most of the report and then doctors actually write a small portion of the actual report.
Eric G - the $2000 cap is "unworkable" - most of the work is done by the broker because of the limited amount of money available to pay for the report.
Suggestion - FSCO needs to look at this in a more systemic way
Query - what is FSCO's or an arbitrators' responsibility when this issue comes up during a hearing ? - When an arbitrator does encounter this during a hearing then they need to report on it and this will have an effect in the future on whether that company or assessor receives any further business

6. Results from Arbitration Streamlining Brainstorm Sessions:
At the previous CF meeting Liz had reported back on some streamlining ideas that came out of several brainstorming sessions with the arbitrators in response to our increased caseload.  In particular:
  • Using Fridays for pre-hearings.
  • Starting out of town hearings on Tuesday.
  • Scheduling settlement discussions at the time of the pre-hearing to save CAs time in scheduling.
  • When booking PHs it is now up to parties to contact FSCO and preferably with an agreed upon dates in order to schedule a PH.
In terms of the Friday PH we are waiting for IT upgrades that would need to be made to our MARS case management system and scheduler.

7.  Other Business

Audrey Ramsay suggested to write an article regarding Mediation and Arbitration Initiatives in dealing with the backlog. Is anyone interested to do an article so we can share news among lawyers? Discussion followed.
Next Meeting – May 27, 2011