Counsel Forum Minutes of Meeting - November 26, 2004

Approval of Minutes – Meeting of September 24, 2004

- The Minutes were approved as submitted.

Business Arising from Minutes

- No business arising.

Auto Insurance Reform Update Margaret Orlander

- Margaret did not attend as there is no update since the last one.

DRS Statistics - Mediation John Lobo

- The statistics were reviewed and discussed. There was a slight increase in applications, and in processing time (due to summer vacations). A new caseworker has been hired to start Monday.
The full settlement rate increased from 34% to 36% over last quarter.

Arbitration - Status and Statistics Asfaw Seife

-Comparing the 4 quarters ending September 30: applications for arbitration increased by 53% in 03\04 over 02\03; pending cases are up 49% (i.e. they are moving through the system more slowly than they are coming in) and overall settlement rates increased by 13%. Arbitration activities are up, meaning arbitrators are doing more of everything, (6% more pre-hearings, for example). The number of hearings held and decisions issues have remained approximately the same (176 hearings in 02/03 and 179 in 04/03; 162 decisions in 02/03 and 160 in 03/04).

However, due to rising applications and reduced staff complement (arbitrators and caseworkers), we are not able to offer pre-hearing dates within 6-8 weeks at the present time (more like four months). As per previous experience, this will likely translate into longer waits for hearing dates as the "elephant moves through the snake."

Two new arbitrators were hired to replace two away on secondment, and two more will be brought on board shortly to replace Arbitrator Allen and Arbitrator Sapin who have been seconded to other positions (Arbitrator Sapin to Senior Arbitrator). This should reduce the waiting times for pre-hearings, although it is difficult to predict how quickly this can be done.

Seventy-six percent of decisions were issued in eighty-five days and the median age of decisions has dropped to 42 days from 52.

Dismissal Orders

There was a consensus among counsel confirmed that, re: signing of consents for dismissal orders, DRS should follow the same practice as the courts, i.e. lawyers (usually for the insurer, as they are the ones who complete the paperwork) can sign on behalf of counsel or paralegal for the other party, and responsibility for the authority to do so rests with counsel. A lawyer in a firm may sign on behalf of another lawyer or paralegal as long as it is clear he\she is doing so. Lawyers' names should be typed or printed under their signatures. Unrepresented applicants must sign on their own behalf. Law clerks may not sign on behalf of lawyers. There was not universal agreement on whether SABS reps (non-lawyers) registered with FSCO should be able to sign on behalf of lawyers but it was pointed out that as a practical matter this is unlikely to occur as it is usually insurer's counsel that undertakes to obtain the dismissal orders.

DRS Statistics - Appeals David Draper

The Appeals statistics showed a downward trend in the numbers of open pending files during the period under review. Staff complement will continue as is.

Mr. Grossman asked if DRS keeps statistics of how frequently arbitrators were upheld or overturned on appeal. DRS does not and does not plan to. Mr. Grossman commented that it is possible for counsel to keep their own stats if they wish as the decisions are public.

Practice Code Update

- David Draper advised that amended versions of the Application for Mediation (Form A) and Application for Arbitration (Form C) and a new Form P (Representing Minors and Mentally Incapable Persons) will be released December 1, 2004. The old forms will be accepted until March 1, 2005.

Eventually, users will be able to download forms. As part of E-filing, a "customized" (i.e. according to date of accident) form will be downloadable.

Other Business

Outreach: an educational session is planned for Kitchener and a possible repeat in Thunder Bay, to include North Bay, Sudbury and Timmins.

Counsel expressed an interest in receiving information\statistics publicly available re: complaints about DACs and suggested Bruce Green be invited to the next meeting.

A question was raised about the use of the term "substitute decision maker" on FSCO forms. David Draper explained that OCF forms are not DRS forms. DRS forms do not use that term. Neither does FSCO oversee litigation guardians appointed by the Courts or under any other process.

The meeting was adjourned at 2:10 p.m.

- Next Counsel Forum meetings are scheduled for January 28, 2005, March 31, 2005 & May 27, 2005. NOTE: As March 31 is a Thursday, that meeting will take place on Friday, April 1.