Counsel Forum Minutes of Meeting - November 24, 2006

Approval of Minutes – Meeting of September 29, 2006

The Minutes were approved as submitted.

Business Arising from Minutes

None.

Auto Insurance Reform Update - Alec Fadel
Disputes Between Insurers:

Alec Fadel indicated that the DBI consultation concluded on October 20, 2006 with limited submissions from external parties. The responses have been assessed and FSCO is presently in the process of forming its recommendations. Before any other steps can be taken, we are awaiting the Court of Appeal decision relating to whether or not MVACF is an insurer. Once this decision is released, next steps will be developed.

Counsel Forum Membership/ Mailing List: -
Catherine Zingg/Susan Sapin

Hard copy of current mailing list provided to Chair. E-mail addresses where possible are particularly helpful and Counsel Forum members are encouraged to provide them. DRS has prepared a list of the 50 applicant representatives (law firms, SABS reps etc.) who have appeared most often at FSCO in the last six months.

Catherine Z. in her role as Chair of Counsel Forum will draft a general letter to the above representatives, explaining Counsel Forum and inviting them to attend.

Stanley P. offered to act as “semi-official liason” with OTLA and agreed to draft a similar blurb for the OTLA Chatline, to include information about how to access FSCO cases on the web, and send it to Catherine for approval.

Catherine Z.’s suggestion to hold a Counsel Forum meeting at another location (downtown Toronto, Barrie, London) possibly to coincide with another well-attended event such as a Canadian Institute function, was enthusiastically endorsed. Details need to be explored, such as organising logistics, RSVPs for attendees and availability of budget. Susan S. agreed to find out about the latter.

DRS Statistics - Mediation - John Lobo

Reviewed and discussed. John L. advised that there was no significant increase in application intake, with slightly fewer applications in the last two months. The higher average processing time is being monitored and an additional mediator has been hired short-term to assist with this. Settlement rates remain unchanged.

Nestor Kostyniuk advised that Mediation’s statistics on success/failure might be of interest to a Court committee for simplified rules of which he is a member; John agreed the statistics could be made available to that committee.

Arbitration - Status and Statistics - Susan Sapin

Reviewed and discussed. Little change since last quarter, no particular issues. Susan S. advised that four decisions have been issued since the statistics were generated.

DRS Statistics - Appeals - Susan Sapin

The Appeals statistics remain steady. The Judicial Review Chart was distributed; Application for JR re: Ms. G has been received.

DRS Excellence Review Project - Susan Sapin

Susan S. provided an update on this project. The consultants have completed their consultation with DRS staff and will be compiling the results into a document for review by the Steering Committee. The Steering Committee is chaired by David Draper and consists of a combination of staff and management members from within DRS. Once the Steering Committee has reviewed the results, it would like to consult with Counsel Forum.

t was agreed that the best method for consultation would be for DRS, as a first step, to provide a document to Counsel Forum members via e-mail and solicit input, after which perhaps a focus group could be arranged if appropriate.

Susan S. also asked for input on the statistics package distributed at Counsel Forum, in case there was information not currently captured, that members would like to see.

Dismissal Orders - Update - Susan Sapin

There is consensus amongst forum members that FSCO’s practice of issuing consent Dismissal Orders where arbitration proceedings settle prior to a hearing benefits both parties to a dispute and should continue. There is disagreement, however, based on differing interpretations of subsection 9.1 (1) of the Settlement Regulation, about whether a Settlement Disclosure Notice should be required only where settlements are full and final, or also in the case of partial settlements, which is FSCO’s current practice. Parties have experienced delays in obtaining Dismissal Orders as a result.

It was agreed that FSCO should review its current practice, and clarify and communicate any resulting changes in requirements to obtain Dismissal Orders, and provide web-based templates and instructions.

Nestor K. agreed to prepare recommendations for changes in practice, on behalf of Counsel Forum .

Interface Between SABS and WSIAT - All

The impact of WSIAT decisions 2035/05 and 1362/06 was discussed. Susan S. advised that at present DRS is not taking any action as it would appear the most recent decision of Vice Chair S. Martel will likely prevail. Alec F. advised that from a policy perspective, FSCO is monitoring this issue and asked forum members to bring any further WSIAT decisions to his
attention. Jen Griffins (from Mr. Eric Grossman’s office) advised that the latest decision of S. Martel may not resolve the issue as her firm has a number of pending decisions. The concern is that parties will increasingly be applying to FSCO under s. 59 of the SABS for resolution of disputes, if WSIAT declines jurisdiction.

Catherine Z. agreed to send a letter to Christine Elliott at WSIAT seeking clarification.