Counsel Forum Minutes of Meeting - March 28, 2008

1. Approval of Minutes – Meeting of January 25, 2008

Item 8 on Page 3 – replace ONTLA with FSCO to read: “Kevin Doan reported that he has not yet has the opportunity to discuss this issue with FSCO.”

Minutes approved with this one amendment.

2. Business Arising from Minutes

The Chair welcomed new member Jadranka Cavrak of Howie, Saks and Henry LLP.

3. Auto Reform Update

HCAI: A Superintendent’s Bulletin was released March 11, 2008 announcing the temporary suspension of HCAI guideline until technical issues are resolved. Accompanying Qs and As provide further information concerning the handling of invoices submitted prior to the suspension of HCAI operations.

Paralegal Regulation: The amending regulations to repeal the operation of SABS representatives as part of the Paralegal Regulation were filed and approved, and a Bulletin will soon be issued. DR is undertaking minimal form changes to accommodate the required amendments to reflect the change in paralegal regulation.

Action Item: Margaret Orlander undertook to arrange for dissemination of the approved regulation(s) to the group.

Form 1 Amendment: A Bulletin will be issued shortly to advise of a required amendment to Form 1 to reflect the March 3, 2008 increase to the minimum wage.

Five-Year Review: Project scope and process design is still in development. Consultations with stakeholders will occur, but decisions on how that will unfold are pending. Subcommittee of Counsel Forum will meet following this session to discuss submissions. There was acknowledgement around the table that addressing the policy issues surrounding the Disputes Between Insurers regulation should be given priority – before the completion of the Five-year review, if possible.

4. FSCO Website

Further to previous discussions reflected in past minutes, approval has been received for a customized page for Counsel on the FSCO website. Suggestions from counsel continue to be welcome and should be channeled through Catherine Zingg and Joseph Griffiths.

In addition, work continues to provide password access to the Judicial Review chart, with a target “go live” date before the next forum meeting.

Longer term issues to be considered include an improved search function for the decisions, an electronic mailing list (list serve) and the feasibility of annotating the statutes with relevant cases.

5. Outreach Committee

The DRS Outreach Committee hosted an information session for Community Colleges and the Law Society to discuss the development of paralegal education programs and LSUC program certification. The event was well attended by 9 of the 10 major colleges.

Discussions surrounded other potential opportunities for outreach: a possible LSUC-sponsored paralegal conference in the fall; Canadian Defence Lawyers’ “bootcamp for law clerks”, as well as the LSUC’s and ONTLA’s law clerks’ conferences.

DRS Brochure: An updated version of the brochure is now available on the website, and hard copies will be provided in a wide network of community venues. It will be posted on the FSCO website in four languages in addition to English and French.

6. Law Reform/Policy Initiatives

See Item #3, above.

7. Recent Decisions/Issues

There was general discussion about a recent Arbitration decision in which the Arbitrator decided that a settlement was not enforceable as the disclosure notice did not contain the signature of the Insurer, as required by the regulations.

There was also general discussion about an inconsistency in the application of DR’s policy that pre-hearings are conducted in person where the applicant resides in the GTA. This represents additional costs for the Insurer when the Insurer’s assigned rep and/or retained counsel must travel to FSCO’s Toronto office. The consensus of the group was that where there is consent of all parties, telephone pre-hearings should be permitted for files in which the applicant is a GTA resident, as is done for non-GTA residents. However, where the file has been assigned to an Arbitrator, the discretion of the Arbitrator prevails.

Action Item: Senior Arbitrator will follow up with Case Administrators to ensure consistency in the application of the policy. Further discussion to occur at the next Forum meeting.

The group discussed the issue of an apparent systemic problem with parties’ representatives attending mediations without sufficient authority to settle.

8. Arbitration Issues:

Consent Dismissal Orders: The draft package is now under review by the Forum’s Subcommittee (Catherine Zingg, Katherine Kolnhofer and Audrey Ramsay) and will be brought to the larger group as soon as possible for review and feedback.

9. Unrepresented Applicants:

Kevin Doan has met with the DRS Committee. Estimates indicate the number of unrepresented litigants is small (10-15 per year). Committee members are reviewing identified files to analyze issues and identify options to address problems. Catherine Zingg has advised the LSUC’s pro bono committee of the work being undertaken through DRS.

10. 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: Applications continue to increase, with 1,404 applications received in February 2008. Pending (open) files have been steadily growing and currently stand at 5,099 files.

Progress was made in February on our average processing time for mediation applications, bringing down the number of days in both the “receipt to perfected” and “receipt to assigned” categories. Full settlements were reached in 50% of the files, partial settlement was reached in 12% of the files, and 38% of the files failed at mediation.

Staffing: Mediation will soon be proceeding to competition on the following positions: two Team Leaders (temporary positions) and four mediators (two permanent positions, two temporary), due in part to the transition of three mediators to arbitrator positions.

Arbitration:

Cases registered in the fourth quarter decreased to 593, the lowest over the past four quarters. In contrast, the proportion of Applicants with legal representatives continues to increase (now at 88%, up from 82% in the first quarter. Cases pending at the end of the quarter decreased, and the clearance rate (closed as a percentage of received) was positive in all but the second quarter (June – August 2007), likely due to vacation schedules. The age of outstanding decisions continues to decline and the percentage of decisions issued within the benchmark 85 days fluctuated over the past four quarters between a first-quarter low of 62% and a fourth-quarter high of 76%.

Staffing: Staffing is now relatively stable as a result of filling three vacancies in a recent competition. One vacancy exists as Lawrence Blackman is on secondment to the Appeals Unit.

Appeals: Volumes remain consistent. Decisions are somewhat backlogged, with 6 pending more than 151 days.

Staffing: Current Appeals Officers are David Evans and Lawrence Blackman (backfilling for Nancy Makepeace).

Judicial Review:

The judicial review application in Cullingham, a case involving insurer priority issues, was withdrawn on consent. The same panel of the Divisional Court overturned two FSCO appeal decisions – Ms. G (nanny expenses) and Kanareitsev (sufficiency of arbitrator’s reasons). In both cases, the Director’s Delegate had allowed an insurer appeal. Both insurers have applied for leave to appeal to the Court of Appeal.

11. Other Business:

S. 42 Exams: It was reported that, frequently, service providers are presenting applicants with packages of consent/authorization/acknowledgement forms for their signature prior to commencement of s. 42 examinations. There is little consistency to the forms and many applicants require their lawyers’ review prior to agreeing to sign. It was suggested that the process could be expedited if FSCO were to develop one consistent form for release/ consent/ authorization, as was done to effect DAC implementation.

Action Item: Margaret Orlander will investigate the feasibility of this and connect with Bruce Green (FSCO) on work done during DAC implementation.

Forum Chair: The current chair’s term ends and a new chair must be selected at the next meeting. Traditionally, the chair has alternated between “applicant/plaintiff” and “insurer/defence” counsel. Expressions of interest should be forwarded to current chair before next meeting.

Next Meeting: May 30, 2008