​BAR DISPUTE RESOLUTION GROUP FORUM (Counsel Forum) Minutes of Meeting held on May 27, 2011

Members Present:                                                                            
Audrey Ramsay (Chair)                                
Lisa Chuyow                                     
Jeff Shinehoft                                    
Mini Kohli
Catherine Zingg
Eric Grossman                                               
Albert Conforzi
Joan Takahashi
 
FSCO Attendees                                          Via Conference Call:                                   
John Lobo                                                       Katherine Kolnhofer  
Elizabeth Nastasi                                              Stan Tessis
Shayna Wiesenfield                                       
Sivan Raz
Christina Pearce
Gael Jasaron
 
  1. Approval of Minutes – Meeting of March 25, 2011                  
    Approved as amended.
  2. E-Scheduling and Mediation Pilot Project:
    The Mediation Pilot Project, which commenced on October 4, 2010, involved an increase in file assignment to mediators, a new rotation “duty” mediator system with a meeting overbooking process and a survey to collect case management data. A comprehensive evaluation of the project will be conducted at the end of December 2011.
The electronic scheduling system will allow parties in mediation to book a date for a mediation meeting online, without the involvement of a FSCO staff. Internal testing on development work is well underway and DRSB has run demonstrations of the system for staff and stakeholders. A phased rollout of the system is planned starting at the end of June 2011.
 
60 day demand failure letter:
Continue to be received. Written response provided on each letter confirming that we are not prepared to issue the requested Report of Mediator, as the Insurance Act establishes a mandatory process. Furthermore DRSB charged with ensuring that the parties are provided with an opportunity to settle their disputes through meaningful mediation, which obviously has not yet occurred. Reference made to dramatic increase in applications, resulting backlog and longer wait times for assignment. Number of initiatives undertaken and we are continuing to explore additional options. In the meantime, asking for continued co-operation in scheduling mediations on assigned files to assist our staff in dealing with these matters as quickly and efficiently as possible.
 
  1. Auto Update/Discussion:
    Sivan Raz took questions/feedback from members who asked questions on Final Report of the CAT Review panel. The Expert Panel’s Report has now been posted on FSCO’s website. Comments were due for submission last Friday – May 13, 2011. The Panel is working on Phase II. The project was not a legal exercise. The Panel is made up medical experts – their medical expertise was why they were invited to sit on this panel. The Panel’s recommendations were not intended to be used in legislation as is. Recommendations were intended to be used when reviewing the definition in the SABS. Any drafting changes will come from the Government.
    A report from the Superintendent will be submitted to Minister by the end of July.

  2. DRS Status Report – Statistics and Staffing Updates
    John Lobo and Elizabeth Nastasi provided statistical updates for Mediation, Arbitration and Appeals with reference to the reports distributed to members.
 
Mediation
Intake:
Monthly: April 2011
Received: 1,320 (still inputting applications for April), Closed: 1,526, Open Pending: 26,110
Processing Time:
Complete: 218 days, Incomplete: 209 days, Perfected to Assign: 71 days, Assigned to Report: 75 days
Settlement:
Full: 65%, Partial: 6%, Fail: 29%
Intake:
Quarter: February 2011 – April 2011
Received: 7,119, Closed: 5,001, Open Pending: 26,106
Processing Time:
Complete: 203 days, Incomplete: 205 days, Perfected to Assign: 90 days, Assigned to Report: 73 days
Settlement:
Full: 64%, Partial: 6%, Fail: 29%
 
Staffing:
6 backfill contract mediators will be coming onboard shortly.
3 summer students coming in our support area.
 
Arbitration:
Senior Arbitrator Nastasi reported to members that files are steadily increasing.
She noted an increase in the amount of cases proceeding to hearing in the past 6 months.
 
Liz is continuing to work with Douglas, Business Analyst, on including the following:
 
  1. Separate out motions and expense hearings from hearings when doing the decisions pending.
  2. Set out how many decision are pending at the time of the report.
Liz will keep members posted and send by email over the summer months.
 
Eric Grossman raised several concerns:
 
First, the fax machines in arbitration may not be working or are constantly busy.  Liz will check the status and follow up with the group.
 
Second, he asked Senior Arbitrator Nastasi to look into the policy or possibility of using email more.  Liz will check the status and follow up with the group.
 
Third, he noted that consent orders seem to still be taking longer than desired to process. Liz advised that there are several arbitrators now available to process and respond to the orders.  Given increased workloads and demands the group is doing its best to respond in a timely fashion.   It should be noted that missing and incomplete documents contribute significantly to processing times.
 
Appeals:
Nothing new to update.
 
Judicial Review:
Updates since March 2011
Judicial review of Jafri and Security National Insurance Co./Monnex Insurance Mgmt. Inc. (FSCO A09-000397, January 5, 2010) [refusal to accept appeal from interim order]
 
  • Hearing held April 18, 2011
  • Dismissed Divisional Court (Wilson, Swinton, Low, JJ)
  • Director’s Delegate had applied the correct legal test to determine if there was a reasonable apprehension of bias. No error in not finding the Applicant’s version of events at the pre-hearing more likely than the Arbitrator’s. The arbitrator’s comments about the “manner” of proceeding with the motion to dismiss the arbitration do not suggest he had pre-determined the
 
Certas Direct Insurance Company and Gordyukova, (FSCO P10-00017, March 17, 2011) [Time limits]
  • New application for JR filed.
  • In an earlier decision [July 30, 2010], the Arbitrator held that court and arbitration proceedings had to be combined. He then held [October 22, 2010] that the court proceedings, which had been commenced in time, could be brought into arbitration, despite more than 2 years passing since the refusal. The Director’s Delegate held that s. 281.1(1) of the Insurance Act and s. 51(1) of the SABS require applicants to choose a forum to dispute a benefit claim within the time limit and prevent them from selecting a different forum for the same benefit claim afterwards, which is effectively what the applicant was seeking to do. The court claims could therefore not be brought into arbitration.
  • Notice of Appearance sent out on May 11, 2011. 

 

Judicial Review of Coachman Insurance Company and D’Ettore, (FSCO P09-00029, July 28, 2010) [whether tort insurer’s assignment of ABs after settlement with Plaintiff valid]
  • New application received April 20, 2011
 
Judicial Review of Coachman Insurance Company and D’Ettore, (FSCO P09-00029, July 28, 2010) [whether tort insurer’s assignment of ABs after settlement with Plaintiff valid]
  • New application received April 20, 2011
  • Applicant claimed v. AB INS C and also sued at-fault TPs, so TP INS Nordic also involved. C paid ABs and then terminated them. N settled tort claim, got consent order assigning Application's future AB claims to N. Assignment banned under s. 65 (1) SABS unless it is an assignment under s. 267.8 Ins Act, which allows an assignment of future collateral ABs after a tort action. C said the order was a consent order to which it was not a party so not binding on them. Arb disagreed. Rev’d on appeal on the grounds that this was not an order after a hearing. “[T]he legislature chose not to include the words „or after settlement of the action‟ in s. 267.8(12) when drafting the section and is presumed to have intended to mean what was said in the section as written, namely that the section only applied where a plaintiff recovered damages after a trial of the action.” No trial here: assignment invalid
 
Judicial review of Girao and Allstate Insurance Company of Canada, (FSCO P11-00006, April 12, 2011), which had refused to acknowledge an appeal
  • The Arbitrator had found that Ms. Girao was precluded from pursuing certain claims. The appeal was rejected on the grounds of prematurity due to the weakness of the apparent strength of the appeal, lack of broad importance, and fact insured wished to proceed ASAP to judicial review.
  • Notice of Appearance set out on May 2, 2011. Record of proceedings is being prepared.
 
Judicial review of Economical Mutual Insurance Company and AUGELLO, (FSCO P09-00002, November 17, 2009)
  • JR Hearing is scheduled for November 23, 2011.
Judicial review of D.F. and Wawanesa Mutual Insurance Company, (FSCO P06-00029, April 15, 2008)
  • Hearing tentatively scheduled November 2011
In Eldridge and AXA Insurance (Canada), (FSCO P07-00006, August 11, 2008) [see August 12, 2010 memo] deadline to perfect is April 29, 2011; parties are trying to reach agreement on contents of the Application Record to be filed for JR.
  • Notice dated May 2, 2011 that Application will be dismissed unless perfected by May 23, 2011.
Judicial review of PASTORE and Aviva Canada Inc., (FSCO P09-00008, December 22, 2009) ALLOWED: Aviva Canada Inc. v. Ontario Trial Lawyers Assoc., 2011 ONSC 2164 (Cunningham, A.C.J.S.C., Matlow & Lederer JJ.), May 13, 2011
 
    1. A Class 4 (marked impairment) in only one area of functioning is insufficient for a catastrophic impairment designation under s. 2(1.1)(g)

      a.    The Guides are incorporated into the SABS. They cannot be treated as inconsistent but should be interpreted in harmony with the SABS and treated as part of the legislative scheme. They require that “all four of the areas of function are to be accounted for in an assessment of catastrophic impairment.”

      b.   The Superintendent’s Guideline stating that at least 2 areas meeting the test were required was inappropriately dismissed, and “dispensing with it because it is not binding is to ignore any assistance the Guidelines may provide in understanding the context and purpose of the legislation including the Guides.”

      c.   “Remedial” means “not just to provide benefits, but to do so in a manner that ac-counts for the impact the provision of those benefits will have on the cost of insurance to the general public,” contra proferentem does not apply, and the legislation must be interpreted bearing that remedial purpose in mind.

    2. An impairment assessment under s. 2(1.1) (g) should distinguish and exclude impairments that are due to physical injuries from an assessment of impairments that are due to mental or behavioral disorder.
      a.   The evidence from a doctor who had been involved in the creation of the Guides, who had reviewed close to a thousand and conducted over four hundred assessments under the Guides and who carried out an assessment of the impairment suffered by Anna Pastore was improperly rejected. This evidence could have explained the background and context of the document as it was incorporated into SABS.
      b.   The arbitrator and Delegate failed to understand the incorporation of the Guides into the SABS.
      c.   An approach which combines the physical and mental components does not fall within the requirements of s. 2(1.1)(g) of the SABS, which defines impairment “due to mental or behavioral disorder”


 
Judicial Review in Bisnath and State Farm Mutual Automobile Insurance Company, (FSCO P10-00018, January 6, 2011). See March 25, 2011 memo.
 
  • JR Hearing is scheduled for October 24, 2011.
 
Application for judicial review of GONSALVES and Certas Direct Insurance Company, (FSCO P09-00036, January 24, 2011) was served March 9, 2011. The Director’s Delegate reversed the arbitrator’s order that had stayed the scheduled arbitration because it would be unfair to proceed to arbitration without an IE.
  • Hearing date has been set for June 27, 2011.
 
 
  1. Results from Arbitration Streamlining Brainstorm Sessions:

Senior Arbitrator Nastasi reported that two brainstorming sessions took place with the arbitrators several months ago. They were well attended and generated numerous ideas. The group considered both short and long term strategies.

 
One short term strategy already being implemented was offering settlement discussion dates at the prehearing.  This is designed to save the case administrator’s time in booking them later.  It is not mandatory.  
 
Out of town hearings will now be booked to start on Tuesdays.
 
Reminder that there is an expectation from parties to call case workers to book their prehearings dates.
 
  1. Outreach Committee Update:
Senior Arbitrator Nastasi informed members that there are two new Co-Chairs:
Deborah Pressman and Susan Sapin.
Both Co-Chairs have been in touch with Kevin Doan to generate ideas about how to connect more with law Associations across Ontario.
One project being considered is the use of webinars.  
 
  1. Other Business
A. Ramsay thanked all members for group to be so active, reaching out to other lawyers and raise popularity of the group. DRPC Committee did an excellent job.
 
Next Meeting – September 23, 2011