Aviva and Tribunals Ontario’s Licence Appeal Tribunal (LAT) are facing scrutiny over alleged “conflict of interest” issues, with a lawyers’ association having called on the Ontario Attorney General to investigate what it has labelled potential insurance adjudicator “bias”.
The Ontario Trial Lawyers Association (OTLA) has alleged that a government insurance adjudicator who had received an offer of employment from Aviva in June 2022 before commencing employment with the insurer later that year went on to render 13 claims decisions for the LAT, with all going in favour of insurers, including Aviva. This is a figure that has been disputed by the adjudicator in question, who set out in a statement shared with Insurance Business that nine decisions, including two with a co-adjudicator and one in partial favor of a claimant, were rendered from the date of the conditional offer to her exit from the LAT to join Aviva.
OTLA has urged for an immediate investigation into Aviva and has lodged a complaint against the insurer with Ontario regulator the Financial Services Regulatory Authority (FSRA), OTLA said in a press release shared on Wednesday.
OTLA has further called on the Ontario Attorney General to address its concerns around the LAT’s policies and procedures on adjudicator bias and conflicts of interest.
"This unbelievable situation shocks and saddens me,” said OTLA President Laurie Tucker. “Many of the people affected by these conflicts of interest do not have lawyers and would have no idea how they can go about trying to reverse this injustice.
“The other insurance claimants have already incurred substantial legal fees to adjudicate their disputes and will now incur additional legal fees to try to re-litigate them.”
The LAT has looked into the matter and contacted the Integrity Commissioner to investigate, OTLA claimed.
In a statement to Insurance Business, Aviva said that the adjudicator, named as Thérèse Reilly was no longer employed by the insurer, effective June 22, 2023. It further denied any knowledge at the time that Reilly had continued to hear its LAT cases following the acceptance of an offer at Aviva.
“It did not come to Aviva’s attention that former Adjudicator Reilly continued to hear LAT cases involving Aviva after receiving and accepting a conditional offer of employment until after those LAT cases had been decided, and the issue was raised by the LAT,” an Aviva spokesperson said. “Based on our knowledge, we believe Adjudicator Reilly ought to have recused herself from any matters involving Aviva in the circumstances.”
“Notably, the employees of Aviva that worked on and had decision making roles on the four Aviva cases did not have knowledge of this individual’s impending employment with Aviva while the files were being heard. Aviva has fully cooperated with the LAT in its review, and will continue to do so,” the spokesperson said.
“Aviva is prepared to work with all parties to have the relevant Aviva cases reviewed, and to the extent required reheard as quickly and efficiently as possible, to ensure the integrity of the auto insurance dispute process and so our customers have confidence in the decisions made.”
Two OTLA members have filed complaints against Reilly with the Law Society of Ontario (LSO), OTLA said. The LSO said it was unable to comment on individual complaints or investigations when approached by Insurance Business.
In a statement, Reilly said that “to her knowledge” just one of the aforementioned OTLA members had appealed the decision made in the complained about cases.
Reilly said that “all [LAT] cases she has rendered decisions on, including the ones during this time period, were made based on the facts, evidence, and law as presented, without bias” and that she regretted that a “lack of proper policies and procedures at the LAT and Aviva regarding disclosure of potential employment have resulted in any ‘appearance of bias’ in this situation”.
The former adjudicator further said that she shared OTLA’s concerns about the LAT’s policies on potential bias and conflict of interest and called for the LAT to “set out the adjudicator's ethical obligations when applying for employment outside the LAT”. Within the statement, she also suggested that Aviva, which she said had not communicated any potential conflict of interest concerns prior to her exit from the business in June, should “consider its policies and procedures regarding cases in front of adjudicators to whom they have made conditional or complete offers of employment”.
Reilly accepted that a conditional offer of employment had been made by Aviva in June 2022, adding that this came with a “conditions precedent” that was not satisfied until October of that year.
Reilly “holds herself to the high ethical and professional standards expected under the law”, it was said in the statement, which set out that in five years with the LAT, none of her decisions had been overturned.
“Ethical behaviour is important for all public servants and Order-in-Council appointees,” a Tribunals Ontario spokesperson said. “To maintain the trust of Ontarians, Tribunals Ontario takes the ethical conduct of its staff and adjudicators very seriously.
“In fact, prior to being appointed to Tribunals Ontario, all candidates undergo a rigorous conflict of interest and criminal background check. Once appointed, adjudicators must adhere to a strict Code of Conduct as well as other applicable conflict of interest rules.”
Staff and adjudicators are barred from allowing the “prospect of their future employment” to detrimentally affect their performance of duties, under Regulation 381/07. They are also required to “avoid an appearance” of giving preferential treatment to a person or entity, the spokesperson said.
Further, in addition to rules around benefitting themselves or family members, they “shall not take on employment if the employment is likely to influence or detrimentally affect the public servant’s ability to perform their duties.”
“However, since our training cannot cover every possible set of circumstances, members are expected to exercise their judgment when complying with these rules,” the spokesperson said.
Adjudicators are required to sign a code of conduct and have a duty to notify Tribunals Ontario’s executive chair “if they have a personal or pecuniary interest that could raise a conflict of interest under the applicable rules,” the Tribunals Ontario spokesperson said.
They added: “Tribunals Ontario expects its members to exercise their judgement when complying with these rules.”
This article has been updated to include comment from Reilly, received August 11.
