Law Times

PAGE 10 FSCO mediation drama continues Accident benefits FOCUS with its mediation backlog. With the courts and arbitrators T s struggles BY JUDY VAN RHIJN For Law Times here's never a dull moment for those following the Fi- nancial Services Commis- sion of Ontario' declaring that FSCO has 60 days to meet its mediation obligations before a deemed failure occurs, the commission is battling on both the legal and administrative fronts. Appeals are pending in the deci- sions that endorsed a 60-day time limit for mandatory mediations. The director' the appeal of the arbitrator's deci- s delegate has accepted sion in Nicholas Leone v. State Farm Mutual Automobile Insurance Co. It will be the first to be heard on June 18. There' nie v. Security National, Hurst v. Avi- va, Singh v. Aviva, and Clarke v. State Farm are proceeding to the Court of Appeal on July 18. The appeal of a matter involving Nebal Younis and State Farm is also pending. The appellants have filed for leave to ap- peal to the Divisional Court as well pending the appeal. The Superior Court cases of Cor- s no word yet on a stay as the Court of Appeal. Eric Grossman of Zarek Tay- lor Grossman Hanrahan LLP is acting on two of the court appeals and the arbitration ap- peal for State Farm and says the materials are in the process of being filed and that intervener motions are expected from the Ontario Trial Lawyers Associa- tion and the Insurance Bureau of Canada. "I expect that many people will be watching with great interest," he says. Steve Rastin of Rastin & As- sociates will be handling the case for the OTLA. "It' of serious importance across the province for accident vic- tims who have to wait 12 to 14 months before they can even start the dispute-resolution pro- cess," he says. The judgments in question s an issue clear," notes Rastin. the decisions' impact on insurers and policyholders. Helen Friedman of the in- surance defence group at Miller Thomson LLP in Waterloo, Ont., agrees that the reasoning in the cases isn't bad. "It' language," she says. say about it. The problem is the practical impact of it. If media- tions are failed, it just pushes the problems down the pipeline. More cases will go to arbitration and litigation, and I don't see the resources in those, either. The plaintiffs aren't going to get their cases dealt with any faster. "There's not much you can are relatively simple exercises in legislative interpretation. "The judge' 'There is no wording to support the interpreta- tion that time doesn't start until the mediator is appointed,' says Steve Rastin. s decision is extremely it is. There is no wording to support the interpretation that time doesn't start until the mediator is appoint- ed. "The wording is what they said " Grossman agrees that legislative interpretation will be a large com- ponent of the appeals but says there will be more to them than that. "There will be public policy issues canvassed for sure. Bureau of Canada is intervening specifically in order to present the insurance industry' " The Insurance s perspective on simply unavailable to deal with the ever-increasing disputes that arise in the accident-benefit claim realm." The root cause of the increase in from the FSCO mediation divi- sion over to the arbitration de- partment or the courts provides no solution. The resources are partner with Greg Monforton and Partners in Windsor, Ont., agrees. "Shiſting this backlog Greg Monforton, senior " RECOGNIZED AS THE LEADING RESOURCE FOR LABOUR ARBITRATION IN CANADA CANADIAN LABOUR ARBITRATION, FOURTH EDITION DONALD J.M. BROWN, Q.C., AND DAVID M. BEATTY Canadian Labour Arbitration, also known as Brown & Beatty, is synonymous with reliability. 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However, even plaintiffs' law- "Historically, denial rates have " says Rastin. Ultimately, FSCO agreed to allow the blitzes by phone. Gilby considers the blitzes s plain themselves to be partially suc- cessful. "It got us talking to the insurance company before the actual blitz occurred as to wheth- er the matter was worth pursu- ing at mediation or whether we would agree to fail it." A recent effort to hire outside mediators is at the evaluation and security-screening stage. The select- ed providers are expected to start receiving files by early summer. Some lawyers are calling for a legislative amendment, but since FSCO is a regulatory body, it would require only a new regulation to change the system. "The only regu- latory change they could do is to increase the time before you have to have the mediation, and that further delay would not serve the plaintiffs' interests," says Gilby. "My opinion is that mediators May 7, 2012 • Law TiMes disputation cries out for examina- tion, lawyers say. "The number of denials is climbing and the rate of denials is climbing, need more teeth. They should be able to go to the lawyers and say that the position they are taking is unfair and unreasonable and that they should look at it again and get it settled." Everyone agrees that no matter what the outcome of the appeals is, efforts to tackle the backlog will still be necessary. Brian Mathers of Monforton' yers agree that the fault doesn't all lie with the insurers. "FSCO is in- undated, claims division believes the worst is yet to come. "The problem will escalate long ers LLP in London, Ont. "There is a whole industry built around mak- ing money through fake claims. There are also a lot of younger lawyers and paralegals who haven't done trials and arbitrations who need the mediators to guide them and tell them what to do. " says Nigel Gilby of Lern- insurers' lawyers are making use of the recent decisions to get their claims moving. Friedman is advis- ing her clients in the insurance in- dustry that they can file a fail and has done so herself in overpay- ment claims. "It works both ways. Why should I wait when no one else is waiting?" FSCO is also continuing to roll In the meantime, plaintiffs' and " s firm's accident-benefit before it improves as the regula- tory changes which took effect Sept. 1, 2010, work their way into the mandatory dispute resolu- tion forum. The new minor injury guideline capping medical and re- habilitation benefits, the elimina- tion of the requirement for insur- ers to obtain a medical assessment before denying benefits, and the 50-per-cent reduction of the in- terest payable by insurers on over- due benefits will undoubtedly re- sult in an increase of new dispute resolution applications." Leone' in its backlog-crunching efforts with its consent failures and set- tlement blitz days. Friedman has mixed feelings about the blitzes. "You are given a random day with very little notice and it' practical," she says. s not always ence and had to advise the media- tor that he and his client couldn't and wouldn't travel Gilby had a similar experi- to Toronto." AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Voudouris of Lofranco Corri- ero, believes FSCO may even be about to enter new territory. "Just because you have an automatic fail and a right to proceed to litigation or arbitration, the par- ties may still choose to mediate. FSCO may have to facilitate vol- untary mediations that are out- side the legislative scheme. s lawyer, Alexander come. "Clients would be able to choose arbitration or take their chances and use an extra set of judicial mediations. I'm not sure it' But that's an option he'd wel- " FSCO yet." s all over for mediations at LT Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Litigation & Forensic Accounting, Financial Investigations Assisting you in CANADA LAW BOOK® www.lawtimesnews.com Vlit_LT_Jan9_12.indd 1 12-01-03 11:38 PM 4 5 Sheppar d Avenu e East, Toronto, Ontario M2N 5W9Willowdale, Ontario M2N 5W9 Suit e 900 evlitigation@rogers.com Telephon e o r Fax (416 ) 930-1370 (905) 731-5812

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