MEETING - Wednesday, January 18, 2006

10:00 a.m. - 12:00p.m.

ROOM 20, tribunal room, 14th floor

Minutes of Meeting January 18, 2006

Attendees:

The Dispute Resolution Group – Companies Forum includes representatives from auto insurance companies dealing with disputes before the Commission involving motor vehicle accident claims and Statutory Accident Benefits. It consults with the Dispute Resolution Group of Financial Services Commission of Ontario on issues relating to the dispute resolution system.

Opening

The meeting was called to order at 10:00 am on January 18, 2006.

The minutes of the last meeting were approved with no changes.

There were no matters arising from the last meeting. A question was raised from the floor concerning an issue discussed in October. Specifically, if there had been any progress on the consideration of a best practice when a claimant appears to abandon an Arbitration. This item was deferred as David Draper was not in attendance today.

Automobile Insurance Reform – Bruce Green on behalf of Roberto Pegoraro

• Bruce confirmed that the new regulation will come into effect on March 1, 2006.
• he new OCF Forms should be released via a Bulletin next week.
• The English version of the forms will be released first. The French versions will be released as soon they become available.
• The Forms committee will be maintained in 2006 to review and improve all forms.
• The DAC Referral Form (OCF-14) will remain for use during the transition period.
• The new set of forms will eliminate the OCF-17 and OCF-20. These will be incorporated into a new OCF-9.
• The intention is to have the new forms published in MS-Word.
• Bruce to check on whether  there is a form for claimant’s to waive the 5 day notice requirement for Insurer Examinations.
• There will be two new forms:

  OCF-25 – Notice of Examination (to replace the OCF-11)
  OCF-26 – Consent to Pre-claim Examination

• If anyone has any concerns he or she should e-mail Bruce at bgreen@fsco.gov.ca.

Mediation Statistics – John Lobo

• Fewer Mediation Applications in 2005 than in 2004.
• An increase in the percentage of claimants represented by law firms including supervised paralegals.
• Average processing time was lower and there was a decrease in single issue applications received.
• Mediation results were similar in 2005 as compared to 2004.
• Decrease in face to face mediations was acknowledged. This issue was raised earlier with the mediators who have since been actively encouraging more face to face mediations, but have experienced some resistance from the parties.
• Due to the new regulation which come into effect March 1/06, there is an expectation that mediation applications will increase. The extent of which is unknown at this time but would be monitored.
• There was some concern from the floor that, in a few instances, Mediators were issuing a settled mediation report where the issue was actually resolved prior to the Application being filed.  John suggested that if there are instances where this is occurring, this should be raised with the Mediators or Team Leaders.  
• There are currently 34 Mediators on staff with two vacancies.
• There are now 2 team leaders – Kathleen Hamilton and Marcelle Bourassa.
• John to provide Mike for distribution, a list of Mediators and their telephone numbers.

Arbitration Statistics – Susan Sapin

• There is an increase in Arbitration Applications.
• More files are being settled at Pre-Hearings.
• Susan confirmed the importance and usefulness of face to face pre-hearings.
• The length of time required for an Arbitration is increasing.
• Two more full time Arbitrators hired and two on 1 year contacts.

Appeals Statistics – Susan Sapin

• Not reviewed in detail.
• Very few Appeals and only one Judicial Review of an Arbitration decision in 2005.

DRS Operational Changes/Update – Susan Sapin

• Website has been updated with more updates planned for August 2006
• Still some difficulties navigating site as it is primarily designed for the public. Information of use to Insurance Community somewhat difficult to find.
• Consensus was that the Arbitration search engine is now better.
• Request made from the floor that any attachment to a FSCO Bulletin be named rather than just numbered to ease search for specific documents.
• Susan reviewed the proposed changes to the ADR Forms to account for the legislative changes and to simplify them.
• If anyone has any suggestions, e-mail Susan at ssapin@fsco.gov.ca by the end of this week.
• Request by Lawrence Blackman that Arbitration responses be specific to the issues in dispute rather than boilerplate. This generated some comments from the floor as to the reasons insurers are prone to provide comprehensive responses.

Fernandes and Scanlan Decisions:

• Some discussion on the implication that these decisions (and particular the Fernandes decision) will have in the future.
• Confirmation that the Fernandes decision is being appealed.

S.A.B.S. Representatives Supervised by Solicitors:

• Question regarding FSCO’s position on any paralegal who is the subject of a cease and desist order simply appearing as a paralegal under the supervision of a solicitor.
• John advises that it would depend on the wording of the cease and desist order. Based on a case to case review, an individual may be permitted to represent an insured person at mediation, if he/she is employed by a lawyer or law firm, and is supervised by a lawyer.
• Following a lively discussion, there was a suggestion from the floor that any concerns should be directed to the supervising solicitor or perhaps the Law Society.

Unfair & Deceptive Acts or Practices:

• Concern from the floor that this may lead to the request for special awards as a retrospective review of an adjuster’s decision may be criticized notwithstanding that the decision was appropriate at the time it was made.
• Susan Sapin advises that the ADR process has nothing to do with UDAP. As has happened in the past, an Arbitrator may decide on a special award if the insurer’s actions were egregious.

Other Business:

• Lawrence Blackman asked that any person representing an insurer or claimant at FSCO have binding authority in order to increase the chances that disputes can be resolved.
• “Binding Authority means never having to pick up the telephone”.

Next Meetings

• April 12, 2006 at 10:00 am
• June 21, 2006 at 10:00 am

Minutes by James Kempf