Ont. lawyers question impartiality of provincial tribunal that hears insurance car crash claims

The impartiality of one Ontario tribunal that oversees many car crash insurance disputes is being called into question.

The Ontario Trial Lawyers Association (OTLA) is asking for the provincial government to launch immediate investigation into the License Appeal Tribunal (LAT). The association says four adjudicators left the LAT to work for a private insurance company and one of those cases they say is troubling.

The association recently learned that tribunal adjudicator Therese Reilly accepted a position at Aviva Insurance while she continued to make rulings on insurance cases, including some involving her future employer. 

"It appears that Aviva may have tried to stack the deck here in terms of this adjudicator continuing to hear these cases or at least that the adjudicator had a conflict of interest and didn't do anything to recuse herself from the hearings," said Jennifer Bezaire, a personal injury lawyer and managing partner of Greg Monforton and Partners in Windsor, Ont.

During her 20 years as a personal injury lawyer, she said she's never seen a situation as egregious such as this arise in the justice system.

"A major cornerstone of the justice system is the ability to have a fair hearing," said Bezaire.

After publication of this story, Therese Reilly said in a statement to CBC News she holds herself to "high ethical and professional standards."

Reilly said that 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 that 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."

Tribunals Ontario expects its members to exercise their judgment when complying with [conflict of interest] rules,- Janet Deline, Tribunals Ontario spokesperson

In June 2022, Therese Reilly accepted a position with Aviva Insurance and stayed on as a provincial adjudicator until November 2022. During that time, the OLTA said she made more than 10 decisions involving a person and their own insurance company, four of those cases related to Aviva.

Reilly said she accepted a conditional offer of employment with Aviva Insurance in June 2022, the conditions of which she did not complete until October 2022. Reilly said she made nine decisions during that time. 

She said two decisions were made with a co-adjudicator, and one was in partial favour of the claimant. Two decisions were appealed, and Reilly said her decision was upheld in each case — and in her five year with the LAT, none of her decisions were overturned. 

Adjudicator ruled favour of insurance companies

The OLTA says in all of those cases, Reilly ruled in favour of the insurance companies.

"They're not supposed to be hired guns for either side of the dispute. They are expected to adjudicate over these cases in an independent or impartial manner," said Bezaire.Bezaire said Aviva executives ought to have known that who they hired in June was still adjudicating cases that involved the insurance company.

"You're already in a David and Goliath type dispute with a multi-billion-dollar insurance company. The last thing anybody would expect is to have an adjudicator with a vested interest in her new employer being successful in a hearing," said Bezaire.

In a statement to CBC News, an Aviva spokesperson said they weren't aware that Reilly continued to oversee cases involving the insurance company until after those matters were decided.

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

The spokesperson said Reilly is no longer employed by Aviva. Reilly said her employment with Aviva concluded in June 2023. 

Aviva prepared to assist in reviewing completed cases

The insurance company also said they are prepared to assist to have the "relevant Aviva cases reviewed ... and to ensure the integrity of the auto insurance dispute process."

The OTLA is calling for the provincial tribunal to implement a policy where adjudicators cannot be employed by companies that have a vested interest in car crash claims for a period of time. They're also seeking clarification about what policies and training is in place for adjudicators who may be in a real or perceived conflict of interest.

"If there is a potential conflict of interest, the suggestion is that it can cloud their judgment or their objectivity," said Laurie Tucker, president of the OTLA.

Tucker said the LAT informed them they've asked Ontario's integrity commissioner to look into this issue.

The Office of the Integrity Commissioner of Ontario tells CBC News that it is reviewing information it's received about concerns at the LAT.

For Bezaire, it makes her "question that tribunal; How did this happen? How didn't they prevent this from happening?"

Reilly 'shares concerns' about LAT policies

In her statement, Reilly said she shared the OTLA's concerns about bias and conflict of interest, "particularly the lack of policy regarding disclosure of potential employment and recusing oneself from the cases of a potential employer, without
otherwise jeopardizing current or potential employment with the LAT."

Reilly said she wants to see the LAT implement policies and procedures for adjudicators regarding their ethical obligations for seeking outside employment. 

But Reilly also said no concerns about conflicts were relayed to her by Aviva until her employment ended in June 2023. 

In her statement, Reilly said that Aviva should re-consider "its policies and procedures regarding cases in front of
adjudicators to whom they have made conditional or complete offers of employment."

'How did this happen?'

A spokesperson for the License Appeal Tribunal (LAT) tells CBC News in an email that they weren't aware before or after Reilly left as adjudicator that she was going to work for Aviva.

When the LAT became aware in May, it says it "undertook an investigation of the allegation."

All adjudicators are given training in regards to their ethical obligations in that role, but the training "cannot cover every possible set of circumstances."

Tribunals Ontario spokesperson Janet Deline said adjudicators have a duty under the legislation to notify the executive chair if there is a conflict of interest.

"Tribunals Ontario expects its members to exercise their judgment when complying with these rules," said Deline.

In June, the provincial tribunal said a "reconsideration" of its own initiative was underway, but didn't elaborate on how that process will work.

The License Appeal Tribunal  calls itself "an independent, quasi-judicial agency" that resolves disputes about compensation claims and licensing activities.

The tribunal only hears car crash claims where someone is seeking compensation from their own insurance company. If a driver is suing another motorist, those are typically held in the Ontario Superior Court of Justice.