1.  Approval of Minutes – Meeting of September 26, 2008
Approved without change.

2.  Business Arising from Minutes

3. DRS Excellence Update
This is a standing agenda item for consultation/updates until October, 2009, which is the targeted completion date. Nothing new to report except that work is ongoing and that the Committee is working very hard.

4. Outreach Committee Update
Asfaw S. reported that as part of its Outreach Initiative, FSCO is offering two Mediators and two Arbitrators in London on April 21 & 22/09 event for mediations, pre-hearings, and settlement discussions that the parties want to conduct face-to-face. Letters were mailed out in December to encourage participation to members for the two days Outreach Initiative.

Speaking Engagements:
Asfaw S. advised of Lawrence Blackman’s upcoming speaking engagement at The Canadian Institute’s Forum in February on the topic of “Taking Your ADR Skills to the Next Level: Best Practices for Adjudicators in Mediation and Arbitration.”

5. Discussion – recent decisions affecting DRS
None raised.

6.  DRS Status Report – Statistics and Staffing Updates
John Lobo, Judith Killoran and Asfaw Seife provided statistical updates for Mediation, Arbitration, and Appeals with reference to the reports distributed to members.

Highlights:

Mediation:
Monthly basis: we received 1327 files in December. We closed 1188 files resulting in a pending of 7039 open files in the system. Average processing time: receipt to Perfected for complete applications has been going down from 49 days in September to 35 days in December.  Receipt to Perfected incomplete applications has also been going down from 54 days in September to 42 days in December.  Perfected to assign is at 41 days, a slight decrease from the previous month. Assigned to Report has also gone down from 54 days in September to 52 days in December.  Perfected to assigned is at 41 days, a slight decrease from the previous month. Assigned to Report has also gone down from 67 days in September to 60 days in December. Face-to-Face remains steady at 5%.  Administrative closures: 75 of the 113 files that were closed were in the No Issues in Dispute Category. Mediation Results:  Full Settlements went up from 50% in September to 55% in December.  Partial Settlement steady at 11%. Failed Settlements went down from 39% in September to 33% in December.

Staffing:  Recruitment will be undertaken in the near future to fill vacant mediator positions and team leader position. 

Mediation Blitz Pilot Project:
A number of internal initiatives are ongoing to deal with our backlog and are currently working on a mediation blitz pilot project.  Three insurers were invited to participate based on their number of applications and their response has been very positive. We have set aside March 24 & 25 and April 21 & 22 and a number of mediators will be available to conduct mediations face-to-face at FSCO. Depending on the success, may need to fine tune and also look at the possibility of offering blitz days on a more regular basis.

Arbitration:
Arbitration continues to receive an increased number of applications. 304 applications were received in the month of December as contrasted with 216 applications in September. There were 2293 applications pending at the end of Decembercompared to 2142 applications pending at the end of September. From October 2008 to December 2008, 804 applications were received compared to 661 received applications from July 2008 to September 2008. As a result of the increased applications, the decision release time has also increased. From July 2008 to September 2008, 89% of decisions were released within 85 days. However, from October 2008 to December 2008, only 63% of decisions were released within 85 days.

Staffing: Joseph S., Manager- Arbitration Services, has gone on a secondment for 5.5 month to the Pension Division.  Interviews have been held to backfill his position. An announcement should be expected shortly.  

Appeals:  No significant change in statistics of the past quarter, except for a drop in the number of appeals filed.  The age of some pending decisions continues to be a concern.

Staffing: Current Appeals Officers are David Evans and Lawrence Blackman. Nancy Makepeace has resigned from FSCO and FSCO is currently in the process of replacing her by way of competition. Lawrence Blackman continues to backfill her position as Appeal Officer.

Judicial Review:
Two new applications for Judicial Review were noted – S. and Allstate and Jetty and ING.

7.  Arbitration Issues:
With respect to the four items listed below, counsel offered some preliminary comments but requested further discussion at the next meeting. Also, some counsel recommended amendments to the Dispute Resolution Practice Code to deal with these issues while other counsel were concerned that the Code not become more complex and cumbersome.

Will Says:
Responses were varied with respect to the use of will says from lay witnesses. Some counsel expressed the opinion that will says could be of some benefit during settlement discussions and could contribute to streamlining the dispute resolution process.

Others questioned the efficacy of adding another level of formality to the process and raised issues about whether will says would be admissible at hearing and whether they would carry much weight in discussions if the will says repeated similar fact evidence. Another issue was whether will says could be used at hearing potentially to impeach witnesses.

Boiler Plate Responses:
Counsel explained the challenges of being retained shortly before the response due date. That is one of the major reasons for boiler plate responses. Counsel requested more flexibility and consistency about increasing the timelines for delivery of responses. It was suggested that the Dispute Resolution Practice Code should provided for extensions to the timelines or the opportunity to file a supplemental response. Also, counsel suggested that another way of countering the negative effect of such responses would be to prepare pre-hearing memorandum although others challenged the effectiveness and efficiency of preparing them.

Authority to Bind:
Counsel discussed this as a significant trend in both quasi-judicial and judicial settings with the use of a committee system by some parties. Often there is a reluctance to settle accident benefit cases until the tort has settled. Counsel were unsure of remedies for this situation but agreed that it could be an abuse of process to have representatives attend proceedings when they lack authority to negotiate and settle a case.

Non-Attendance:
Counsel agreed that arbitrators should be more aggressive and impose cost sanctions if a party does not attend a pre-hearing. Some cautioned, however, about adopting a consistent, measured approach to this problem by allowing room for discretion in cases where a party is unable to attend, possibly due to disability.

8.  Restrictions on Paralegals:
Kevin Doan raised the question on “Restrictions on Paralegals” via email for the DRS Counsel Forum Meeting: does FSCO have any restrictions on what paralegals may mediate, including specifically the issue of catastrophic impairment entitlement? Is there any on-going discussion with the Law Society regarding limitations as towhat paralegals may mediate? If yes, what is the position of FSCO if any? John and Asfaw responded that the LSUC were the one who regulates the Paralegals. It is their regulation, including exemptions that we look to. Kevin D. was advised that he may want to refer to their website for the updates including what paralegals can do in respect to catastrophic claims.

9.  Other Business
Practice Note #11:
There was also a proposal to amend Practice Note #11, last paragraph of the Mediator form. Further discussion amongst counsel was required before FSCO can consider the suggested amendment.

Next Meeting – March 27, 2009
Agenda Items: - Practice Note #11
- Five Year Review Update from Policy Branch

Future Meeting Date:
May 29, 2009