Counsel Forum Minutes of Meeting - September 30, 2005

Members Present: Ivan Luxenberg (Chair) Catherine Zingg Nestor Kostyniuk Joan Takahashi Greg Houser Michael Gillen Eric Grossman Martin Hasting George Kanellakos

Attendees: FSCO David Draper Susan Sapin John Lobo

Approval of Minutes – Meeting of May 27, 2005
The Minutes were approved as submitted.

Business Arising from Minutes
None.

Auto Insurance Reform Update - Margaret Orlander
Not much new. The technical review of the legislative reforms to the DAC system has been carried out and the implementation date for DAC reform is now February-March 2006. David Draper pointed out that the reforms will inevitably lead to changes in the forms used, and DRS will be counting on Counsel Forum for input.

DRS Statistics – Mediation - John Lobo
No significant changes other than Applications for Mediation appear to be decreasing, the reasons are not entirely clear. Forum members speculated that perhaps this is due to fewer claims being received by insurers and fewer Applications from paralegals representing service providers. John noted there appear to be fewer “single issue” Applications.

Arbitration – Status and Statistics - Susan Sapin
As a result of a continued significant increase in Applications for Arbitration, processing time is longer and it is difficult to schedule pre-hearings within the promised 6-8 weeks from date of Application. Susan confirmed that pre-hearings are scheduled on a first come, first served basis as dates are available, and neither party is unilaterally permitted to circumvent this practice. However, should earlier dates become available, case administrators will attempt to contact parties who requested earlier dates but were unable to get them.

The Arbitration Unit has hired additional case administrators, arbitration assistants and arbitrators to handle the backlog, and there are plans to hire up to the maximum of 21 arbitrators if necessary.

DRS Statistics - Appeals and Judicial Review -David Draper
There are fewer appeals.  Outstanding judicial review decisions were noted.

DRS Operational Changes and Update

Staffing:
Mediators: following 2 recent competitions, 6 permanent and 7 contract mediator positions have been filled.
Team Leaders: interviews just concluded for 2 permanent and 1 contract, team leader positions.
Manager: position has been filled from competition.
Five arbitrators on contract/secondment recently made permanent, Arbitrator Allen to return from secondment on November 1.

Website:
Now up and running. Counsel pointed out that the downloadable Settlement Disclosure Notice form does not comply with Regulation 664 because it does not include a place for insurers to sign it. Margaret Orlander will fix this.

DRS intends to implement e-mail notification to stakeholders of changes and updates and anticipates this is about six months away.

Cease and Desist Orders:

Arbitration Response Due Date:
This is now accurate.

Other Business
Refreshments – David Draper advised that as Counsel Forum is a stakeholder consultation group, DRS will be providing reasonable refreshments for the forum meetings.

Should insurers be able to apply for arbitration? Eric Grossman addressed this question to Margaret Orlander, as a result of the recent Fernandes decision, pointing out it makes little sense that insurers can litigate and go to private arbitration, yet cannot apply for arbitration under the Insurance Act, particularly when the issues they are likely to want to litigate are best dealt with by FSCO arbitrators. Margaret advised this type of initiative must begin at the political level.

Settlement Discussions during pre-hearings:
Counsel expressed dismay that some arbitrators do not pursue full and final settlement of cases at pre-hearings and do not put as much emphasis on genuine settlement discussions during pre-hearings as formerly, such that cases that could settle at pre-hearings are sometimes not given the chance to do so. Counsel value arbitrators’ efforts to engage the parties in meaningful settlement discussions, and consider the pre-hearing a prime opportunity for these discussions to take place, even where the parties may profess reluctance.

David and Susan expressed that this is precisely the type of feedback that is valuable to the arbitration unit to assist us in providing a valuable service, and advised that current practices vis-à-vis settlement would be discussed with the arbitrators.

Arbitrator Decisions:
Susan asked for feedback on style and content of arbitration decisions to determine if arbitrators could better meet the needs of parties. It was pointed out that the lack of an official transcript or record in many proceedings increases the need for arbitrators to include more factual material in their decisions, and that this is perhaps an issue that could be revisited.

The meeting was adjourned at 2:00 p.m. and it was suggested that the next meeting take place at 9:30 in the morning.