Counsel Forum Minutes of Meeting - January 26, 2007

Approval of Minutes – Meeting of November 24, 2006

The Minutes were approved as submitted.

Business Arising from Minutes

None.

Ottawa Outreach - D. Draper

Penny Dutton, David Draper, and arbitrators David Leitch, David Evans, Lawrence Blackman, Denise Ashby, and John Wilson went to Ottawa on January 19th to present two simultaneous half-day sessions, in English and French, for the local bar, in conjunction with the County of Carleton Law Association, entitled “A Fork in the Road: The FSCO Route for Litigating SABs Claims.” Forty people attended the English presentation, fewer at the French one, both sessions very well-received. Papers presented at this outreach session will be available on the FSCO website in both languages.

DRS Excellence Project Update - D. Draper

The survey went out to members of Counsel Forum and responses were received.

Blitz Days - D. Draper

The possibility of re-instituting some version of this type of settlement event was discussed. Proposals included: determining which cases would be most amenable to a settlement in this way, such as small cases with no companion tort, which had not settled at the pre-hearing;
blitz days outside the GTA, where FSCO would send an arbitrator and a mediator; canvassing interest at Companies Forum. SABs cases file with FSCO that have accompanying tort actions might not be good candidates as the SABs issues are often adjourned until the tort claim “catches up.” Logistically, flagging cases suitable for blitzing could be done at the pre-hearing; suitable cases would require three – four months’ lead time.

Attempting to settle SABs cases with the tort as well could be problematic given the different production and disclosure requirements at FSCO vs. the courts, and the ongoing concern of some counsel re: improvident SABS settlements.

SABS Update - C. Zingg & D. Draper

Two new regulation changes (533/06 and 534/06) appeared in the December 23, 2006 edition of the Ontario Gazette, regarding the Health Claims for Auto Insurance (HCAI) project aimed at automating the exchange of standardized health information between health care providers and insurance companies. More information and the Bulletin are posted on the FSCO website; note however that the Superintendent’s Guideline mentioned there has yet to be drafted.

Counsel Forum members asked if DRS could start up a (small) list serve service to provide stakeholders who subscribe with SABs updates via e-mail.

S. Pasternak raised the issue of the inadequacy of the current Expenses Regulation which caps expenses for expert medical reports at $1,500 for example, which is far less than would be obtained in the courts, despite the fact that the actual cost of such reports is actually far more, and is the same regardless of forum. D. Draper agreed to refer this concern to Automobile Insurance Policy.

DRS Statistics - Mediation - K. Hamilton

Reviewed and discussed. K. Hamilton advised that there was a drop in application intake for the month of December (down 359 applications from the previous month). There was a slight decrease in processing time for the perfected to assigned files. Settlement rates are up 1% from the previous quarter.

Arbitration - Status and Statistics - S. Sapin

Reviewed and discussed. Little change since last quarter, no particular issues. Susan S. advised that four of the older decisions have been issued since the statistics were generated, and the remainder are being closely monitored. There is a consensus that, although 70% of decisions are issued within the 85 time limit, many FSCO decisions are longer than they need to be and some take longer than they should.

DRS Statistics - Appeals - D. Draper

The Appeals statistics remain steady. The Judicial Review Chart was distributed. An application for judicial review in the Kanareitsev decision (dealing with adequate reasons) was received in early December 2006. Leave to appeal to the SCC in Young (catastrophic impairment) was dismissed with costs.

Agenda Items for Future Meetings - All

It was suggested that invitations to the next Counsel Forum meeting be sent to applicant’s counsel listed on the list provided by DRS to C. Zingg, in an effort to increase attendance at Counsel Forum by members of the plaintiff bar, who are under-represented. S. Pasternak also agreed to ensure notice of future Counsel Forum meetings was brought to the attention of OTLA.

Other Business

A recent Small Claims court decision – OJ No. 5187 – appears to indicate Treatment Providers are proceeding directly to Small Claims court to collect payment from applicants for treatment plans, without first applying for mediation at FSCO, and members are asked to keep Counsel Forum informed.

Future meetings
March 30, 2007 at 9:30 at FSCO
May 25, 2007 at 9:30, location to be determined.