Counsel Forum Minutes of Meeting - January 25, 2008

1. Approval of Minutes – Meeting of November 30, 2007

Item 9 “Unrepresented Applicants” amended to read:

“Action: Kevin Doan will discuss with OTLA and report back at next meeting.”

Minutes Approved with this one amendment.

2. Business Arising from Minutes

David Draper advised that the mailing list has been revised and asked members to advise of any additions or corrections, including making sure that the right person in you firm is getting the mailings.

3. FSCO Website

• David Draper reported further to previous discussions as reflected in past minutes, that work continues on customizing a page for Counsel on the FSCO website. Any suggestions from Counsel continue to be welcome. Contacts for this project are Catherine Zingg and Joseph Griffiths.
  
• Kevin Doan will raise this issue with OTLA for their input.

4. Outreach Committee 2007-2008

No new business.

David Draper reviewed DRS Outreach Committee activity for new members. This includes:

(1) partnership between the Law Society, Community Colleges and FSCO working on reviewing paralegal education and certification;
(2) FSCO arbitrators and mediators going to communities around the province, beginning with London, to provide a day of mediation, arbitration, settlement talks and/or meetings with local bar association. Expect to deliver about 2 per year; and
(3) actively seeking opportunities to present at conferences, general meetings. Members with information about or involved with events seeking speakers are encouraged to contact David.

5. Law Reform/Policy Initiatives

David Draper and Margaret Orlander jointly updated the Members.

• Osbourne Report is out. Recommendations may be included in the five-year review. FSCO is waiting for direction.
• 5 Year Review of SABS will commence by October 2008. Terms of Reference are still being worked out. There is still time for Members to provide input regarding what should be included.
  Any Members interested in providing submissions are invited to contact Catherine Zingg.
• SABs Reps/Paralegals – the Law Society and FSCO continue to work closely around the handover of overseeing of paralegals to the Law Society.
  • The LSUC has been posting regular notices on their website, including who has applied. The transition date from FSCO to the LSUC is set for May 1, 2008.
  • There are still issues under discussion, including for example the “good character issue” and how paralegals will be dealt with. FSCO will look at Reps status in relation LSUC regulations, and will no longer be responsible for discipline for actions taken after May 1, 2008.
  • As well, supervised non-lawyers (allowed under FSCO system) will disappear under the new scheme (reference Bylaw 7 setting out what lawyers are can delegate to non-lawyers; and Bylaw 4 for exemptions).

6. What’s New – Recent Decisions/Issues (affecting DRS at FSCO):

Catherine Zingg mentioned the case of Aguello v. Economical as one members may be interested in reviewing ? a insurer request to state a case to the Divisional Court on the interpretation of the definition of “catastrophic impairment” was rejected.

David Draper mentioned that there have been a number of recent decisions dealing with issues of production (one of which has been appealed) and catastrophic impairment.

7. Arbitration Issues:

• Clearing Backlog on Consent Dismissal Orders – Janine Macey reported that Arbitration has been working on the backlog over the past several weeks (since before Christmas) and are currently “in good shape.”
• Consent Order Template(s) - Janine reported that there is a plan to post templates for Consent Orders on the FSCO website. Drafts are in internal review. David Draper suggested that the group consider a smaller working group be formed to review the draft and recommend changes. Drafts will go to Katherine Kohlnhofer, Audrey Ramsey and Katherine Zingg before review by the entire group.

8. Unrepresented Applicants:

• Kevin Doan reported that he has not yet has the opportunity to discuss this issue with OTLA.
• David Draper asked the Members to consider creative solutions to the issue of unrepresented insured persons in dispute resolution at FSCO. One suggestion was that Pro Bono Ontario.
• Suggestion arose from Members as to whether FSCO could connect with the Osborne Report/Min. A-G working group that is looking at the issue of unrepresented parties.David Draper will follow-up with them and report back.
• Catherine Zingg suggested the further possibility of raising this issue with the Advocate Society.

9. DRS Status Reports:

John Lobo, Janine Macey and David Draper provided statistical updates for Mediation, Arbitration, and Appeal with reference to the reports distributed to Members.

Highlights:

• Mediation: For the period Jan to Dec 2007 – 14,281 files were received. This represents an increase of 1, 266 files compared to the same period in 2006. Of these 14,281 files received – 14, 213 were under Bill 59.
• The percentage of Applications completed when files is up to 63% for 2007 as compared to 59% in 2006 and 49% in 2005.
• 74% of the registered files were represented by law firms which includes supervised paralegals.
• Average processing time went down in 2007 as compared with 2006.
• Results Profile and Adminstrative Closures were also reviewed.
• Mediation Results: Full Settement 44% in 2007 compared to 38% in 2006. Partial Settlement (incl with P/A) 15% in 2007 as compared to 17 in 2006. Failed (incl with P/A) 41% in 2007 as compared to 45% in 2006.
• Staffing: 4 additional mediators have been brought on in January in contract positions. 3 of the 5 are short term to assist with the current backlog that are pending assignment.
  
• Arbitration:
  

  Reviewing on a quarterly basis over the past year, there was an increase in files registered in July, resulting in a slight increase in pending matters. However, clearance rate (matters filed versus disposed) improved by year end. Representation of applicants remained constant at around 85%, as do the proportion of matters resolved at hearing and pre-hearing stages. Age of Decisions pending improved in the second half of the year, so that overall targets have been met.

  A review over the past four years indicates an increased settlement rate; applications received have remained relatively constant, except for 2005; decisions issued 85 days have been consistently within the 70% benchmark, notwithstanding a steady increase in the number of decisions issued.
  
  A question was raised about the reason for a 20% increase in written submissions in 2007 from prior years. David Draper suggested it is likely a follow-up tool used by Arbitrators.
  
  A question was raised about whether there has been a change in the adjournments policy. The suggestion was that many Arbitrators allow adjournments frequently resulting in extended proceedings, and a concern that this increase in adjournment results in unfairness, particularly when occurring at last minute or on “eve of hearing”, often for the reason that the applicant can't be located. David Draper responded that the unit has been discussing the significant number of cases where the applicant is a "no show" to develop a consistent approach and to ensure a lack of prejudice and true fairness for the applicant and for the insurer. The issue will be raised again with the Arbitrators. Another reason for last minute adjournment requests is a change in representation for the applicant, but DRS had not identified this as a particular problem late.
  Staffing: Interviews for Arbitrator positions are complete. Announcement in next few weeks. Email announcement will be sent to Counsel.
  
  

• Appeals: Decisions did get somewhat backlogged. Has now improved.
  

• Nancy Makepeace is on secondment. Current Appeals Officers are David Evans and
  Lawrence Blackman.
  

• Judicial Review: Approval has been received to post reviews. There will be a link established from the Chart to the related FSCO decisions. Looking at possibility of also linking to Court Decisions.
  
  

10. Other Business:
None.

Next Meeting: March 28, 2008