Canadian Underwriter

Accident benefits arbitrations face the same kind of backlogs seen in courts: FSCO director delegate

November 1, 2010   by Canadian Underwriter

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Arbitration is supposed to offer a cheaper, quicker alternative to the courts when resolving accident benefits disputes, but the current reality is completely different, Lawrence Blackman, director delegate at the Financial Services Commission of Ontario (FSCO), says.
At the Canadian Defence Lawyers (CDL)’s 3rd Annual Accident Benefits Experts Seminar in Toronto on Nov. 1, 2010, Blackman spoke about the importance of sticking to best practices in an effort to keep arbitrations on a timely schedule.
“What is the reality?” Blackman asked rhetorically. “You know as well as I do what the reality is. The reality on both sides is boilerplate pleadings, boilerplate production requests, fishing expeditions…a jury policy where at least 95% of requests are granted, last-minute adjournment requests, hearings extending for weeks, months, even longer, bankers’ boxes of documents that are duplicated repeatedly and although the system does at present have arbitration hearings available next week, I see that arbitrators are booking hearings for the autumn of 2011.”
Blackman said there were 14,000 applications for mediations in the 12-month period ending 2007. Last year, there were 26,000 applications in the same period.
“That is 500 applications for mediation a week,” Blackman said. “That’s an 89% increase, and there has been no increase in staff.”
Three years ago, there were 4,500 mediations pending. In September 2010, the number was just shy of 20,000.
Blackman said general arbitration guidelines provide that an arbitration be assigned to a mediator within three weeks of receipt of a completed application. “Presently, there is an eight-month gap,” he said.
As for arbitration pre-hearings, there is a similar backlog, Blackman noted. As of September 2010, FSCO received 4,000 applications for a pre-hearing in the past 12-month period, which amounts to 80 applications per week.
“In next 18 weeks, there are 31 pre-hearing spots available,” said Blackman.

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