Ontario adjudicator, Aviva targets of “conflict-of-interest” complaints

The Ontario Trial Lawyers Association (OTLA) filed formal complaints this month against Aviva Canada and Licence Appeal Tribunal (LAT) adjudicator Thérèse Reilly, alleging the adjudicator was in a “conflict of interest” when she continued adjudicating LAT tribunal panels in insurance matters after being hired by Aviva. 

The trial lawyers’ accusations have not been proven in court. Reilly has told media her decisions in the insurance cases were fact-based and untainted by bias. She claims LAT disclosure procedures should be tightened up to prevent any appearance of bias.

Aviva Canada said it was unaware Reilly was involved in insurance cases for LAT after the insurer hired her. Reilly is no longer employed at Aviva, the company confirmed to Canadian Underwriter.

In a press release, OTLA says Reilly applied for a position with Aviva in May 2022, and accepted a conditional job offer by Aviva in June 2022. OTLA claims Reilly, as a LAT adjudicator, continued to hear 10 different insurance cases and render decisions in favour of insurers, including Aviva, even after accepting employment with the company.  

“There needs to be impartiality in decision making, whether it’s a judge or at a tribunal like this,” OTLA president Laurie Tucker told Canadian Underwriter when asked about the contents of OTLA’s press release. “If an individual has accepted a position of employment, or even applied for a position of employment, and then goes on to decide cases involving that insurer and other insurance companies, I think it’s problematic.” 

OTLA has filed a complaint against Aviva Canada with Ontario’s insurance regulator, the Financial Services Regulatory Authority (FSRA). Similarly, it has filed a complaint against Reilly with the legal regulator, the Law Society of Ontario (LSO). 

“FSRA has received a complaint from the Ontario Trial Lawyers Association and is currently in the process of reviewing,” FSRA spokesperson Russ Courtney told CU. 

LSO is under a legal obligation not to confirm or deny investigations against lawyers. It provided a link to its rules of professional conduct, which outlines a lawyer’s relationship to the administration of justice. “The admission to and continuance in the practice of law implies on the part of a lawyer a basic commitment to the concept of equal justice for all within an open, ordered, and impartial system,” the rules read. 

Reilly did not respond to a LinkedIn message from Canadian Underwriter seeking comment. However, in a statement to CBC, she said all her decisions “including the ones during this time period, were made based on the facts, evidence, and law as presented, without bias.”

She said she regrets the “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.” 

 

Aviva and LAT respond 

In a statement to CU, Aviva says it was unaware of Reilly’s role in handling its cases at the time of her employment offer. 

“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 told CU.  “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. 

“Based on our knowledge, we believe Adjudicator Reilly ought to have recused herself from any matters involving Aviva in the circumstances.” 

Reilly is no longer employed with Aviva effective June 22, 2023, the company shared.  

“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,” the company spokesperson said. “Aviva has fully cooperated with the LAT in its review, and will continue to do so.” 

LAT also expressed it was not aware of Reilly’s hiring by Aviva until the allegations arose. 

“The Licence Appeal Tribunal (LAT) was not informed before or after the former adjudicator left LAT that they were going to work at Aviva,” a spokesperson told CU.  

“The LAT became aware on May 3, 2023, of an allegation that the former adjudicator went to work for Aviva immediately after they ended their appointment at LAT. At that time, the LAT undertook an investigation of the allegation, including requesting details from the former adjudicator.” 

By June 2, LAT said it received confirmation of Reilly’s employment with Aviva, and “by June 12, 2023, a reconsideration on the LAT’s own initiative was underway.” 

LAT says its Ontario adjudicators are given training regarding their “ethical obligations,” per the Public Service of Ontario Act (PSOA) and Tribunals Ontario’s Code of Conduct, including: 

• They shall not allow the prospect of their future employment to detrimentally affect the performance of their duties, 
• They shall avoid an appearance of giving preferential treatment to a person or entity that could benefit from it, and  
• 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.” 

To prevent future conflicts of interest, OTLA’s president believes the LAT should institute a “cooling-off period” between employment at the tribunal and any insurance company. 

“I would not expect an adjudicator to be able to go directly from the LAT to work for an insurance company, a plaintiff firm, or a defense firm doing personal injury auto insurance work,” Tucker said. “I don’t understand why there’s no cooling-off period, which I think would go a great distance to helping avoid these kinds of conflicts.” 

 

Feature image by iStock.com/sabthai