Companies Forum Minutes of Meeting - September 14, 2006

Opening

The meeting was called to order at 10:00am on
September 14, 2006.

The minutes of the last meeting were approved with a few changes.

Director of Arbitrations, David Draper, reported that leave to appeal to the Supreme Court of Canada is being sought in the Young v Liberty case.

Marcie Bourassa was introduced as a new Team Leader in Mediation Services at FSCO.

Mediation Statistics and Issues – John Lobo

Mediation application intake was down slightly in August.
Mediation intake after March 1, 2006 was up by 135 over 2005, but 925 less than in 2004. General feeling at the meeting was that it may still be too early to see an increase in applications, expected post DAC elimination.

Average processing time for applications continues to be monitored, especially for perfected files which are pending assignment to mediators. Vacations, other leaves and recent secondments in the unit further contributed to the pending assignment backlog.

The percentage of face-to-face mediations continues to drop, despite team leaders and mediators encouraging more face-to-face mediations.

Under Administrative Closures, no issues in Dispute, continues to be the biggest closure category.

An increase in full settlement rate to 39%, with the partial settlement rate at 18%.

The recent mediator competition has concluded, with four mediators hired full time, two will be hired on contract for up to 12 months, and two will be brought on for 5.5 months contracts.

Arbitration Statistics – Susan Sapin

Arbitration numbers have increased and the administrative process is moving faster from beginning to end, with 76% of decisions released within 85 days. There are now 22 Arbitrators, up from 16. Only a few PAF disputes have been seen to this point. More streamlining is being done in appropriate cases.

Appeal Statistics - David Draper

The number of Appeals has remained relatively constant at a manageable level. The overturn rate has not been determined in some time, but at last measure was roughly 20 per cent.

FSCO Matters:

FSCO DRS is involved in an internal operational review. It is currently at the consultation stage. It is expected the consultant will want to meet with stakeholders to look at “how to do things better”.

Website – DRS forms are gradually being put into fillable Word format. The mediation application form will be done first followed by the Arbitration application form. The “search” function for arbitration and appeal decisions is on the “to do” list to improve. There was a suggestion to add DRS phone numbers to the site so they are easier to find. Also suggested was a page breakdown by stakeholder group, but there is a limit to the changes that can be made.

Dispute Between Insurers – Members were provided with a copy of the Consultation Paper where procedural issues have been identified and changes proposed. Members were asked to provide any feedback or comments by October 20, 2006 and it is appropriate to have our Counsel review as well. Counsel Forum will also be provided a copy for comments.

Other Issues:

1. There was a discussion with respect to the Liberty v. Fernandes decision. It was concluded that this will have an impact on “final offers” made by insurers and the DRS. It is questionable at this stage as to how broadly the decision will be read but likely liberty. Suggestion:

   There was a lively discussion with respect to the Fernandes vs Liberty Mutual decision. It was felt that this decision would have an impact on insurer “Last Offers”.

   John advised that mediators would continue to ensure that they have obtained the insurer’s Last Offer of settlement, even if it is $0.00, on all issues that remain in dispute. In those situations, where the Last Offer may require an explanation, the parties should ensure that it is clear and concise. Mediators would be reminded that at the conclusion of the mediation meeting,when they typically run throught the contents of their report withthe parties in joint session, that some additional time be spent on the Last Offer. This would reduce the likehood of any issues arising after the mediation meeting, especially when parties receive the report and not increase amendment requests.

   If the issue of the final offer needs to be heard quickly once the matter is in arbitration, it may be possible to schedule a preliminary issue hearing.

2. There was a further question as to why we are currently using the 1993 OMA guidelines as there is a much newer version. This would need to be addressed by those in the Policy Department at FSCO. Alec Fadel has agreed to bring this issue to the attention of the Policy Department.
   
3. There was some concern with respect to the abuse of Rebuttal reports under Section 42.1 of the new legislation. There was a suggestion that the reports were either not addressing the issues in dispute or were not limited to a response of the examination material. There was a further suggestion that the rebuttal report was being used in place of an approved Section 24 assessment. If it is clear that the Rebuttal report does not specifically address and respond to the Section 42 report the suggestion was that we either deny payment for the report or that we pay based on the OMA hourly fee guidelines.
   
4. There was question regarding CAT assessments. The onus is on the applicant to prove they meet the CAT guidelines and if they do not, they are not deemed CAT.
   
5. There have been reports of a supervised paralegal misrepresenting themselves as a medicial practitioner. Members were asked to notify FSCO of any further instances. If this persists we may also consider a complaint to the governing body for the profession. There was a question as to whether or not this could be considered an unfair or deceptive act or practice.
   
6. The Insurance Bureau Of Canada (IBC) is completing a study on the over use of OCF-22’s. A report from the IBC should be forthcoming.
   
7. It was noted that Insurers are receiving applications for benefits and applications for mediations even before the insurer has had an opportunity to respond. It was suggested that in such cases where there is an abuse of process that details be provided to the caseworker or mediator handling the file, and that management also be advised.
   
8. It was suggested that an IBC Representative be present at our meetings. The former representative has passed away so they will be asked to participate again. If they can not be resent, we should send specific questions to them to respond in time for the next meeting.
   
9. John confirmed that the issue raised at the last forum meeting about some mediations proceeding with the applicant being present was discussed with the mediators as well as other options that they might consider rather than failing the issues in dispute.

Next Meetings

The next meeting will be December 7, 2006 at FSCO at 10:00am.

The first 2 meetings in 2007 will be March 8, 2007 at 10:00am and June 7, 2007 at 10:00am.

Minutes - Sharon Lennox