Counsel Forum Minutes of Meeting - September 26, 2008

1. Approval of Minutes – Meeting of May 30, 2008

Minutes approved. 

2. Business Arising from Minutes - none

3. DRS Excellence Update – A. Seife:

Asfaw reported that Phase I of the DRS Excellence Project (Knowles Report) Implementation is now underway. The Project Charter that defines the scope and deliverables of this phase of the project has been signed- off and the project team has been put together. He stated that while the Knowles Report has made more than 85 recommendations relating to DRS policies, procedures and case management system, the Phase I implementation focus will be on those recommendations that have an IT component to them and can be incorporated in the change to MARS V- the migration of the existing MARS IV data from the Visual FoxPro to the new FSCO IT Microsoft NET/SQL Server platform. Asfaw advised that the goals of the project are: to migrateng existing MARS IV data to the new platform; correct and fix known issues in MARS IV and implement Phase I of the DRS Excellence Project. Asfaw stated that members of Companies and Counsel Forums will be consulted and their input and feedback will be sought during the implementation process. 

4. Outreach Committee Update – A. Sone:

Anne Sone reported that FSCO is planning to hold face-to-face pre-hearings, mediations and settlement discussions outside the GTA, in areas where there is an interest in this range of services. Participation is completely voluntary. Counsel and parties will be able to choose which cases they deem suitable for face-to-face attention. 

The program will start in London, where the counsel have expressed a lot of interest. FSCO is planning to send two arbitrators and two mediators to conduct face-to-face pre-hearings, mediations and settlement discussions over two days in January or February 2009. If this program is successful, FSCO is planning to repeat it a few times a year in areas where there is interest.

Counsel at the meeting provided very valuable feedback and advised that:

• Based on their busy schedules, counsel should receive at least four to preferably six months of notice of these events so they can take advantage of these opportunities.
• Notice should be given to all counsel across Ontario, not just local counsel.
• Notice could be placed on FSCO’s website.
• Weather should be taken into consideration.
• FSCO should send arbitrators and mediators on these outreach missions on a regular timetable, preferably every two months on a rotating basis. (Should a party be unable to attend at one face-to-face event, it would lessen potential prejudice to parties if another opportunity were available shortly.).

Medical Legal Society Event – A. Sone:

Philippa Samworth, who is President of the Medical Legal Society, advised that it is holding a one-half day mock CAT arbitration on April 22, 2009. Dr. Ameis and Dr. Becker are participating and are reversing their normal roles. They have asked Guy Jones to act as arbitrator, and wonder whether Lawrence Blackman could come on behalf of FSCO, and comment on aspects of the mock arbitration such as how to present and file expert evidence. Asfaw advised that FSCO would get back to them.

5. Discussion – Recent decisions affecting DRS – ALL:

Discussed.

6. DRS Status Report – Statistics and Staffing Updates

John Lobo and Asfaw Seife provided statistical updates for Mediation, Arbitration, and Appeals with reference to the reports distributed to members.

Statistics Highlights:

Mediation: 

John provided a detailed comparison showing the increased application intake in mediation on a monthly, quarterly and annual basis. 15,677 applications for mediation were received for the period Sept 07 to August 08, as compared to 13,654 for the previous year, which impacted the pending open files which currently stands at 6,479 files. Average processing time in calendar days has gone up largely due to the increased intake, the resulting backlog and staffing issues. F2F meetings remained fairly constant. Settlement rates are up - Full settlement rate 49% as compared to 42% in the previous year, partials at 13% as compared to 16%, failed down at 38% as compared to 42%. An update was also provided on what was being done to deal with the accumulated backlog and fluctuating caseloads.

Arbitration and Appeals:

Asfaw reported that there has been no significant change in the receipt of arbitration applications or arbitration activities from what was reported in the last quarter. Appeals stats for the last quarter show a notable increase in receipt of applications –up from 11 to 15. Members inquired about the process for deciding which decisions are posted on the website and why some decisions on motions and production issues are posted while others are not. Asfaw explained that while there are general guidelines about posting of decisions on the FSCO website, the individual arbitrator is responsible for the format in which the decision is issued. Asfaw stated that there is a recognized need for consistency in this regard and that the issue needs to be discussed internally.

Judicial Review:

The Judicial Review chart and an update memorandum were circulated at the meeting.

Arbitration and Appeals Staffing Update:

Asfaw advised that there have been some changes in Arbitration and Appeals staff since former Director of Arbitrations David Draper left in early May/08. Asfaw has been designated as Director until a new Director is appointed by an Order-In-Council.

Judith Killoran was appointed Senior Arbitrator backfilling Asfaw Seife and Anne Sone is covering for Janine Macey in her absence until mid Oct/08. There is currently recruitment activity to fill two temporary vacant arbitrator positions as well as a number of positions in the arbitration support area.

Lawrence Blackman will continue backfilling for Nancy Makepeace until December/08. 

Mediation Staffing: 

2 team leader positions; 3 vacant permanent mediator positions and 4 contract positions were filled.

Due to the backlog mediation has brought on 2 additional case workers in its support area and will be bringing on some additional mediators shortly.

7. Five Year Review – A. Seife:

Margaret Orlander was unable to attend the meeting. Asfaw provided the following update on her behalf:

• FSCO has been reviewing and analyzing all submissions from stakeholders in order to support the Superintendent’s conduct of the five year review.
• In all there have been 89 submissions received by FSCO.
• Over 70 submissions have been posted on the FSCO website, with the consent of the stakeholders. Submissions from consumers were the largest group (these ones have been anonymized on the website).
• Other groups that provided feedback, besides consumers, are health care providers, lawyers, municipalities and insurers.
• Overall, a lot of thoughtful contributions.
• Some themes emerged: high transaction costs, lots of assessments being done, accident benefit system has become very complicated for all users.
• We have no definite due date at this point for when the report is provided to the Minister.
• Likewise, no certainty around what will be done with the report or its recommendations.
  

Some members commented that there is no legal mandate or political interest for the Minister to do anything with the Superintendent’s report. 

8. Other Business: 

No other items discussed.

Next Meeting: November 28, 2008