Counsel Forum Minutes of Meeting - September 29, 2006

Approval of Minutes – Meeting of May 26, 2006

The Minutes were approved as submitted.

Business Arising from Minutes

No business arising.

Auto Insurance Reform Update

Nothing new to report

Counsel Forum Membership/Mailing List -
Catherine Zingg/David Draper

C. Zingg and D. Draper informed members at the meeting that they will be working together on updating the mailing list to bring it up to date. There followed a general discussion on various ways to encourage members participation at the Counsel Forum meetings. Catherine and David will follow-up with OTLA via Stan Pasternak.

Fernandes v Liberty Mutual - Catherine Zingg/David Draper

There was a general discussion about the recent Court of Appeal decision in Fernandes v. Liberty Mutual. It is expected to have implications for dispute resolution at FSCO, particularly around the use of last offers. DRS is not planning to re-open old mediations or mediation reports, although representatives may want to argue for exceptions in particular cases. No legislative response is planned at this point.

Arbitration Orders - Catherine Zingg

Questions were asked about the process for obtaining arbitration orders, as there seemed to be some inconsistencies among the arbitrators in what they required. The Senior Arbitrators will follow-up on this issue, with the goal of creating clear process that can be communicated to the parties, ideally with procedures and precedents posted on FSCO’s website.

DRS Outreach Sessions - David Draper

David D. reported that DRS was involved in an outreach session in London on September 29th, hosted by the local bar association. A similar, but bilingual event is planned in Ottawa in late 2006 or early 2007.

DRS Excellence Project - David Draper

David D. informed members that the DRS Excellence Project, an operational review of DRS, is underway. The mandate is to discuss about scope, processes and structure, a sort of internal review inside the Dispute Resolution Services. Consultants have been retained to work with staff to document current processes. It was discussed that the consultants will want to meet with Companies and Counsel Forum members. It was left to the Chair to find volunteers to meet with the consultants.

Disputes Between Insurers - Alec Fadel

Alec F., Senior Policy Analyst, Automobile Insurance Division, distributed a consultation paper relating to the Dispute between Insurers Regulation and proposed changes to same. The paper documents a few identified difficulties with the Regulation along with proposed changes. The members of the forum were invited to make comments on the paper by way of email and it was noted that the due date for such comments is set for October 20, 2006. A few comments were made by the members regarding the Regulation suggesting that FSCO arbitrators, rather than private arbitrators, should be hearing these kinds of issues based on their expertise and the problems the parties have encountered in the private sector. It was also suggested that the 90 days to notify all potential insurers about the dispute between insurers is too onerous and is interpreted as limitation period of 90 days which was a concern given the Limitation Act.

DRS Statistics and Status - Mediation - Kathleen Hamilton

- The statistics were reviewed and discussed. There is no significant increase in applications received compared to the previous three months. Average processing time for perfected files to assignment to a mediator is up and is being monitored. The bulk of administrative closures were under the “no issues in dispute” category. Full settlement rate increased to 39% in August.

- Following our recent mediator competition, Dana Hirsh, Janet Walker, Sal Maietta and Sharon Jansz were successful in securing permanent positions. Elizabeth Faggiani, Ingrid Benjamin, Monica Sukhu and Sue Volman were successful in securing contract positions.

Arbitration - Status and Statistics - Asfaw Seife

- The statistics were reported and discussed. We received approximately the same number of Applications for arbitration for the year ending August 30, 2006 as we did the year before (2811). FSCO's actuaries predict a slight but steady increase in Applications over the next year or so.

- There were 10 decisions over 151 days old as at August 30, 2006; several were issued in September and are not reflected in that report. 200 decisions were issued in the year ending August 30, 2006, compared to an average of 163 in the three preceding years. The percentage of cases that settle without a hearing remains constant at 95%.

- Under "Processing Analysis," the number of files pending at year-end is, for the first time in many years, less than the number of files pending at the start of the year, indicating considerable progress in efficient processing of files.

DRS Statistics - Appeals - David Draper

Appeals caseload remains relatively steady. An updated Judicial Review Status chart was distributed, with a brief discussion of developments.

Other Business - All

Eric G. raised a recent decision from WSIAT, concluding that the Tribunal did not have jurisdiction to decide an application brought by a first-party insurer to determine whether the person was entitled to claim workers’ compensation benefits because no court action had been commenced. Eric G. agreed to provide some additional information, and David D. will raise the issue at FSCO’s Auto Policy Committee.

Agenda Items for Future Meetings - All

Next Counsel Forum meeting is scheduled for Friday November 24, 2006 at 9:30 a.m.