Counsel Forum Minutes of Meeting - September 25, 2009

1.  Approval of Minutes – Meeting of May 29, 2009

Approved without change.

2.  Business Arising from Minutes

3.  DRS Excellence Update – DRCD Demo Presentation and Consultation

Victor Cherniavsky, Systems Development Consultant, and Francisco Liu, Business Analyst, gave a presentation on DRCD Demo.

Dispute Resolution Case Directory (DRCD) is a repository that insurers can log into and review their own open cases in Automobile Insurance Dispute registered at the Financial Services Commission of Ontario (FSCO). It provides a communication platform that allows insurers and FSCO to share the same information. 

FSCO is re-designing the DRCD so that it can provide more information for its users and reduce some of the manual processes. Some examples include the following:

• Insurer’s Rep Contact Form can be updated electronically through DRCD rather than by fax. This will allow information to be more accurate and updated in a timely way.
• More metadata are attached in the case list, e.g. claim number, and Electronic Entry & Search ability Function is added, so that the users can easily sort and find the case(s) needed
• Disputed issues will be displayed in the DRCD, which may be an easy way for insurer’s to check their files earlier.
• Many members raised the concern that claimants and their representatives are not treated fairly when they are not given equal access to the DRCD or a similar database as that provided to insurer. FSCO attendees explained that the intention is to do this in the next phase of the DRCD development project, which does not have a fixed starting time Members emphasized the need for FSCO to ensure that parties in the dispute resolution system are treated fairly in terms of access to information and use of the system.

4. Outreach Committee Update – London Outreach Session

Senior Arbitrator Elizabeth N. informed Counsel Forum Members that letters were sent out to community colleges advising that FSCO is prepared to make mediators and arbitrators available to speak about FSCO / DRS to their paralegal classes. 

A couple of requests have been received.

A similar letter has been drafted and approved and will be sent out to stakeholders and organizations that offer training and conferences. CPPA has reviewed the letters and the list of recipients is being finalized.

Outreach Projects for Spring 2010, arbitrators and mediators will go to London again building on experience of the past. New area of similar outreach would be northern Ontario either Thunder Bay or Sudbury

5.  DRS Status Report – Statistics and Staffing Updates

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

Highlights:

Mediation:

Monthly for Aug 09

1,825 new applications received, 1,192 closed, 10,579 total open files.
Average Processing time complete Applications: 44 days, Incomplete Applications: 52 days, Perfected to assigned: 92 days, Assigned to Report: 64 days
F2F: 5%
Admin Closures: 70 out of 89 files were closed No Issues in Dispute
Results: Full settlement: 58%, Partial: 11 %, Failed: 31% 

Quarterly: June – Aug 09

5,785 new applications received, 3,609 closed, 10,581 total open files
Average Processing time complete Applications: 42 days, Incomplete Applications: 48 days, Perfected to assigned: 90 days, Assigned to Report: 64 days
F2F: 5%
Admin Closures: 254 out of 334 files were closed No Issues in dispute
Results: Full settlement: 58%, Partial: 11 %, Failed: 31%

Annual: Sept 08 – Aug 09

19,170 new applications received, 15,805 closed, 10,581 total open files
Average Processing time complete Applications: 38 days, Incomplete Applications: 44 days, Perfected to assigned: 60 days, Assigned to Report: 66 days
F2F: 5%
Admin Closures: 1,006 out of 1,372 files were closed No Issues in dispute
Results: Full settlement: 54%, Partial: 12 %, Failed: 34%

Staffing:

Cancelled the Team Leader competition: will instead be bringing on board 2 additional mediators on a short term basis due to the backlog, using the team leader positions as offsets.

Currently interviewing mediators – fixed short term contracts of up to1 year – may result in some changes if our current contract staffs are not successful in the competition process, plus bringing on additional mediators through use of the offsets from other positions. 

3 additional caseworkers have come on board – will be involved in the Mediation Reduction Strategy.

Arbitration:

245 applications were received in the month of August as contrasted with 311 applications in May. There were 2,705 applications pending at the end of August compared to 2514 applications pending at the end of May. From June to August 2009, 845 applications were received compared to 876 applications from March to May 2009. Also during the period of June to August 2009, the decision time increased from 41 days to 50 days and the number of decisions released within 85 days increased to 82% from 73% in the previous period. In August 2009, 100% of the decisions were issued within 85 days which was attributed to the staff being at full complement and up to speed.

Phillipa S. shared her concerns of delays in booking pre-hearing with arbitration case workers. Janine M. will follow up on this issue.

Appeals: 

The number of applications has been increasing marginally over the last 3 quarters and sits at 15 for June to August 2009. The total number of decisions issued for the same period rose to 12 compared to 10 from March to May 2009. Also during the period of June to August 2009, the decision time fell to 25 days from 37 days in the previous period of March to May 2009. 

Staffing: Appeal officer competition completed and an offer was made. 

Judicial Review: 

ROOZ and Certas Direct Insurance Company and Zapisnoy, (FSCO P07-00017, March 26, 2009) // Rooz v. Certas Direct Insurance Co., [2009] O.F.S.C.D. No. 38 // Zapisnoy v. Certas Direct Insurance Co., 2009 CarswellOnt 1954.

Application filed June 2009 

Judicial review of Murugappa and Aviva Canada Inc., (FSCO P06–00036, May 1, 2008)

• Dismissed June 18, 2009. Aviva Canada Inc. v. Murugappa, 2009 CanLII 34045, [2009] O.J. No. 2770 (ON S.C.D.C.) (Lederman, Karakatsanis and van Rensburg) – Application dismissed. Director’s delegate not unreasonable.
  “The interpretation of the SABs and of the benefits available under that regime is at the very core of the tribunal’s specialized expertise as is the interpretation and application of the limitation clause which is part of the SABS regime.”
  Application for leave to appeal filed.

Judicial review of Ramalingam and State Farm Automobile Insurance Company, (FSCO P05–00026, August 13, 2007)

• Application dismissed. State Farm Mutual Automobile Insurance Company v. Ramalingam, 2009 CanLII 44115, [2009] O.J. No. 3491, 2009 CarswellOnt 4961 (ON S.C.D.C.) (Swinton, J; Low and Bryant JJ. concurring.) The issue was s. 42 IEs. Two arbitral decisions refused the insurer’s request for IEs. On appeal, the Director’s Delegate said that the decisions interpreted s. 42 too narrowly but upheld them on the basis of the insurer’s delay in seeking the IEs. The Divisional Court dealt with the interpretation of s. 42, stating:

[42] The task of this Court on judicial review is to determine the reasonableness of  the decision of the Director’s Delegate. She made it clear that the two arbitrators had interpreted s. 42 too narrowly when they held that s. 42 only applies when the insurer adjusts claims. Her decision in that regard is a reasonable one.

The court also agreed that there was no breach of natural justice when the insurermade the tactical decision to not oppose the claim for benefits or call or cross-examine any witnesses. 

6.  Mediation Strategy Update

John L. provided an update on mediation intake and increasing processing and assignment wait times. John L. also provided an update on a current initiative to try and reduce the number of pending applications. Letters were sent to major stakeholders – a letter to all the ADR Coordinators and another to claimant representatives, advising them of the backlog, increased processing time and asking for their assistance in letting us know when the issues have resolved or where an entire file has settled prior to the appointment of a mediator. On receipt of the notification and subject to confirmation, resolved files will be pulled of the assignment track to a mediator. Phase 2 of the initiative involves support staff sending out lists to bulk user representatives and following up with a call, one week prior to the registration of files to the mediator, to weed out any resolved files. Protocols are being developed for this initiative.

7.  Submitting documents to mediation

Michelle J. (OTLA) raised the issue of what is the appropriate procedure for submitting documents to the mediation unit. Discussion proceeded on what paper filings are needed or not when you file a mediation application.

8.  Other Business

Fire Years Review:

Nothing new to report.

Anonymization Committee Update:

Asfaw S. informed Counsel Members that the Options paper was prepared by the committee. There was an unit consultation held on October 2/09 by the Anonymization Committee. There was a general consensus on the proposed strategy. A briefing note will be in preparation for review by Director prior to finalizing recommendations.

Written guidelines on FSCO Complaints:

John L. confirmed that the written guidelines on FSCO complaints are available on the website. 

Next Meeting – November 27, 2009