Questions are being asked about impartiality at the License Appeal Tribunal (LAT), an independent agency that hears car crash insurance disputes between policyholders and their insurance companies.
The Ontario Trial Lawyers Association has requested an investigation of the LAT after four adjudicators left the tribunal for positions at private insurance companies.
One of the four adjudicators, Therese Reilly, took a position at Aviva Insurance in June 2022, yet she continued to issue rulings on insurance cases until leaving the LAT in November 2022. The OTLA says she ruled on more than 10 cases, including four that involved Aviva. All of her decisions were in favour of the insurance company.
Did the Insurance Company Stack the Deck?
Jennifer Bezaire, managing partner at Greg Monforton and Partners, was recently interviewed about the situation. She says it looks like Aviva “may have tried to stack the deck…” Either that or the adjudicator had a clear conflict of interest and should have recused herself from hearings involving Aviva.
Bezaire said she has never seen something so egregious in her 20 years as a practicing personal injury lawyer.
She further noted that one of the “cornerstones of the justice system is the ability to have a fair hearing.”
Bezaire said adjudicators are not supposed to be “hired guns” for any party in the dispute. They are supposed to be independent and impartial.
“The last thing anybody would expect is to have an adjudicator with a vested interest in her new employer being successful…” Bezaire said.
The Former Adjudicator’s Response to the Controversy
Reilly told CBC News she maintains “high ethical and professional standards,” and she said her decisions as an adjudicator were based on facts, evidence and the law. She said her decisions were made without bias.
Reilly said the LAT and Aviva do not have proper policies about disclosure of potential employment. She regrets that the lack of a policy creates an “appearance of bias.”
However, a spokesperson for Tribunals Ontario said members are expected to use their judgment when it comes to conflict of interest rules.
Reilly also says Aviva should reconsider it’s policy about cases being heard by adjudicators who have conditional or complete offers of employment with the company.
Aviva Insurance’s Response
An Aviva spokesperson gave a response to CBC News, saying they did not know Reilly continued to hear cases after accepting the position. They did not find this out until after those cases were resolved.
The Aviva spokesperson says they believe Reilly should have recused herself from any cases involving Aviva. It is also important to note Reilly’s employment at Aviva ended in June of this year.
Aviva says they are prepared to help with reviewing the Aviva cases, with the goal of ensuring “the integrity of the auto insurance dispute process.”
Policy Changes Recommended by the OTLA
The OTLA is asking for the provincial tribunal to add a rule stating that adjudicators cannot be employed by companies with a vested interest in car crash claims for a certain period. The OTLA would also like more information about policies and training for adjudicators who may have a real or perceived conflict of interest.
Potential conflicts of interest could potentially “cloud their judgment or their objectivity,” says OTLA President Laurie Tucker.
Why Was This Allowed to Happen?
Bezaire wants to know why this occurred and why this situation was not prevented.
An LAT spokesperson says the tribunal did not know that Reilly was leaving to work for Aviva. They also did not know this after Reilly left. The LAT found out in May and immediately investigated.
Adjudicators are trained about ethical obligations, but it is not possible to discuss every situation. However, adjudicators have a duty to tell the executive chair about conflicts of interest.