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April 2012

FSCO Counsel Meeting Summary: How to address the mediation backlog

At McCague Borlack LLP, one of the ways our Accident Benefits team keeps track of the current issues and developments at the Financial Services Commission of Ontario (FSCO) is by having a representative attend their counsel meetings which occur every other month.  At the meeting held on March 30, 2012, the main topic was How to address the mediation backlog.

While the volume of Applications for Mediation being filed and the limited number of FSCO mediators available to handle them are the primary source of the problem, the following three factors are exacerbating the problem:

  1. Consent failures

    Since the fall of last year, FSCO has sent approximately six thousand "consent to fail" forms to insurers and applicants’ legal representatives. To date, FSCO has only received 27 properly completed forms. Counsel at the meeting identified three causes for the failure of this initiative:

    1. FSCO requires original signatures from all counsel. They will not accept facsimile copies of the form.

    2. Insurers have to spend an inordinate amount of time chasing and following up with the applicants’ legal representatives for completed forms. 

    3. Once a file is in the mediation e-calendar system, a properly completed "consent failure" form is rejected by FSCO’s administration.
  2. Mandatory FSCO mediation blitzes

    Since November 2011, FSCO has been conducting "mediation blitzes." At first, they were voluntary but due to the poor response, they are now mandatory. These blitzes occur at FSCO every Friday.

    While this initiative has enjoyed some initial success, counsel identified two problems with the current system:

    1. FSCO chooses which files between a particular law firm and an insurer are subject to the blitz. Parties have little control over the selection of the files or the date of the blitz. As a result, parties on both sides have often attended the blitzes with little knowledge of the files selected.

    2. FSCO has difficulty identifying related parties that were involved in the same accident when the father, mother and child have different last names. When one file is selected for the blitz and the related files are not, this significantly decreases the likelihood that the one selected file will be resolved. FSCO advised they believe that insurers are in a better position to identify related files.

  3. Rejection of Applications for Arbitration on files where the mediation did not take place within 60 days

    Since the appeals of Cornie et al v. Security National ("Cornie") and Leone v. State Farm (‘Leone"), FSCO has been rejecting Applications for Arbitration where the mediation was deemed to have "failed" because a mediation did not take place within 60 days from the date of the Application for Mediation. FSCO advised that counsel for the appeal in Cornie are currently in the process of preparing and filing their materials. It is likely that the court’s appeal decision in Cornie will be rendered sometime in late 2012.

    In response to the rejection of many Applications for Arbitration, counsel at the meeting speculated that insurers may see an increase in the number of Statements of Claim being issued. It was further speculated that these Statements of Claim might be abandoned in favour of Applications for Arbitration once the appeal decisions are available since most judges do not possess the same knowledge of accident benefits as FSCO’s specialized arbitrators.

    As a result of FSCO’s rejection of these Applications for Arbitration, thousands of files remain in "limbo" without a proper mediation being conducted or an Application for Arbitration being filed.

McCague Borlack LLP has the experience to address all of your accident benefits needs. Our team has the depth to handle all levels of files from soft tissue and chronic pain injuries to complex catastrophic claims and files where bad faith and special awards are claimed. Our team members have experience handling every stage of an accident benefit file from the mandatory FSCO mediation and pre-arbitration hearing to preliminary issues and week long arbitrations. We also have experience with loss transfer and priority disputes files. At McCague Borlack we strive to work with our clients to resolve each file quickly and efficiently. Read more about our Accident Benefits practice group.


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