SPECIAL AGENDA ITEM: 1:00-1:30pm
DRS Excellence Review Project Susan Lee
- attached memo from Cheryl Cottle
AGENDA
- Review and Approval of Minutes from Previous Meeting
- May 28, 2004 - Business Arising out of Minutes
- Auto Reform Update Margaret Orlander
- Mediation DRS Staff
- Status and Usual Statistics
Arbitration
- Status and Usual Statistics
- Arbitration Issues Susan Sapin
Appeals & Judicial Review
- Status and Usual Statistics
- Judicial Review Decisions - Operational Update
- Other Business
BAR DISPUTE RESOLUTION GROUP FORUM (Counsel Forum)
Minutes of the Meeting held on May 28, 2004
Members Present:
Michael J. Gillen (acting chair)
Joanna Chadwick
Alan Lebovitch
Ivan Luxenberg
David Dinner
Catherine Zingg
George Kanellakos
Attendees: FSCO
Asfaw Seife
Shonna Neil
Margaret Orlander
Barbara Dudzinski
Approval of Minutes – Meeting of March 26, 2004
- The Minutes were approved as submitted.
Business Arising from Minutes
- No such business arose.
Auto Insurance Reform Update Margaret Orlander
- Margaret Orlander spoke to this topic.
- There were over 100 responses to the EAN (Expert Assessor Network) paper, some of which were non-specific due to the general nature of the proposal which had been circulated. Many respondents commented on the need for standardization of protocols , neutrality and the need for quality assurance. Concerns were also expressed with respect to the following issues:
- The emphasis on the use of physicians as opposed to other health care practitioners;
- Timelines being proposed;
- Physician availability to perform assessments within the timelines;
- The elimination of assessments under ss. 24 & 42 of the SABS;
- Regarding opinions of EAN's as prima facie evidence.
- Although Margaret could not give any clear indication of the next phase in these discussions, she made it clear that the government's stated intention is to eliminate the DAC system.
– Margaret pointed out that the EAN Consultation Paper stated that the new model would be implemented by the end of December 2004.
- Margaret also discussed the LSUC paper on regulation of paralegals and how it will impact on registered representatives at the Financial Services Commission of Ontario. In particular the Financial Services Commission of Ontario has concerns with respect to the proposed $10,000.00 limit on paralegals.
- Also discussed was the 1 year "no settlement" amendment to the Settlement Regulation. Some members expressed frustration with this policy and would like to have the opportunity to address this issue with the government. Other members felt content with the one year rule.
DRS Statistics - Mediation Shonna Neil
- The statistics were reviewed and discussed. It was noted that the number of mediations received was up for the period April to July, 2003. It was felt that this was probably due to anticipated changes to the settlement regulation, in an effort to get settlements before the one year rule came into effect on October 1, 2003. It was further noted that mediations received had dropped from November, 2003. The rate of full settlements, which has hovered at about 50% for years has dropped to below 40% since November, 2003.
DRS Statistics - Arbitration Asfaw Seife
- Comparing the stats for the four quarters over same period last year, cases received have increased 22% , partly due to the bulge in mediations received for the period April - September, 2003. The Arbitration unit also wonders whether this is, in part, due to a preference for arbitration over court, or due to the decrease in full settlement rates at mediation, particularly due to the regulation relating to the rules of settlement of cases with a DOL of less than one year.
-Some counsel raised a concern that arbitrators might not be reading documents in the pre-hearing file before starting the pre-hearing. It was noted by Senior Arbitrator Seife that an arbitrator's preparation for the pre-hearing includes reviewing all relevant materials in the file before starting the pre-hearing; however, it was understood that there may be instances where arbitrators do not have time to review every document due to last minute file assignments. He explained that the arbitrator retains the discretion to decide on the nature and extent of preparation required for each case.
- Another member expressed concern that some arbitrators at a Pre-Hearing might be quick to accept the opinion of one of the counsel that there is no chance of settlement, and therefore do not give settlement enough of an effort. Senior Arbitrator Seife explained that settlement discussion is a primary objective of the pre-hearing and that arbitrators encourage the parties to engage in such discussions; that parties are expected to participate in the process in good faith and that finally it is in the discretion of the arbitrator how much effort is required in canvassing settlement possibilities. Arbitrators often resume pre-hearings in order to give parties another chance to discuss settlement, for example after documents not available at the time of the pre-hearing have been received and reviewed by the parties.
DRS Statistics - Appeals Asfaw Seife
- Arbitrator Seife spoke to this as well.
- The statistics were reviewed. There are no significant trends at this time.
- One counsel suggested that the Appeals Unit promulgate some guidelines with respect to written submissions, along the lines of Facta in the Court of Appeal being limited to 10 pages, noting that he had recently received a 68 page written argument from the Appellant in a case, and found this difficult to respond to. Arbitrator Seife said that he would communicate this to the Director of Arbitrations.
Operational Updates Barbara Dudzinski
- It is expected that updates to the Practice Code will take place online in real time, and this method of providing updates is expected to be in effect in mid 2005. Counsel were urged to suggest any changes being proposed to be submitted to the Financial Services Commission of Ontario as soon as possible.
- At present there is a Senior Arbitrator position that is in the interview process, and also two new arbitrators are being hired. During late August, 2004, there will be mediator recruitment.
Other Business
Outreach Program:
- There will be an outreach program along the same lines as the ones in Thunder Bay and Sudbury on August 25, 2004. The law association in Thunder Bay has expressed an interest in re-doing one in that city in the near future, especially in light of changes to the Insurance Act and SABS in the last year.
Statement of Priorities:
- This document is due to be released on June 4, 2004 and will be available through the Financial Services Commission of Ontario web site.
New Chair:
- Ivan Luxenberg was unanimously elected as the next chair of the Bar/DRG Counsel Forum.
- The Acting Chair and all persons present expressed their sincere appreciation to Stanley Pasternak, who has been the chair since May, 2002.
Ministry of the Attorney General
Legal Services Branch
Financial Services
Commission of Ontario
17th Floor, 5160 Yonge Street
Box 85
Toronto, Ontario M2N 6L9
Tel: (416) 250-7250
Fax: (416) 590-7070
Writer's Direct Line: (416) 590-7160
MEMORANDUM
Date: September 20, 2004
To: COUNSEL FORUM
And to: COMPANIES FORUM
From: Cheryl Cottle
Project Lead
DR Working Group - DR Excellence
Subject: Agenda item – Meeting with Consultant (DR Excellence)
The Superintendent of Financial Services is gathering comments from the Dispute Resolution Services Branch staff regarding opportunities for improved service delivery.
The purpose of this exercise is to ensure that the work environment, structure and delivery systems of the Dispute Resolution Services Branch continue to support the effective and efficient delivery of excellent dispute resolution services. The Superintendent is not looking to change the basic model, which is built around services provided by staff directly employed at FSCO, operating under the current legislative structure. We are hopeful that the information that is gathered will enable the Superintendent to address opportunities for change with the view of improving the delivery of services over the near to mid-term.
A consultant (Business Improvement Architects) has been engaged to support this process. As both the Companies Forum and Counsel Forum are meeting this month, we have asked the consultant to meet with you during your respective meetings. The consultant will be seeking your input based on the following four questions:
- What key elements of the current system do you feel are functioning well and would not like to see changed?
- The Dispute Resolution Practice Code "creates rules for timely, cost-effective and fair dispute resolution services."
Rule 1.1 states, "these Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute."
With these principles in mind, is there anything FSCO/DRS could do to improve its provision of dispute resolution services?
- Are there any interactions between the DRS process and the courts that you would recommend be changed?
4. If you could change one thing about the services provided by DRS, what would it be?
The consultant attending Counsel Forum is Susan Lee and the consultant attending Companies Forum is Michael Stanleigh.
Thank you for your corporation. We look forward to hearing back from the consultant on your responses to these questions.
DR Working Group
DR Excellence
Ministry of the Attorney General
Legal Services Branch
Financial Services
Commission of Ontario
17th Floor, 5160 Yonge Street
Box 85
Toronto, Ontario M2N 6L9
Tel: (416) 250-7250
Fax: (416) 590-7070
Writer's Direct Line: (416) 590-7160
Financial Services Commission of Ontario