As personal injury lawyers, one of the cornerstones of our legal system is the expectation that adjudicators remain impartial in their decision-making. Unfortunately, a recent case involving the License Appeal Tribunal (LAT) in Ontario has cast doubt on this principle, with serious implications for access to justice.
In May 2022, Thérèse Reilly, during her position as an adjudicator at the LAT, applied for a job at Aviva General Insurance, an employer that would have a direct interest in the cases she was handling. According to OTLA investigations, she was set to begin work at Aviva in December 2022, once Reilly’s appointment at the Tribunal ended. Between May and November 2022, Reilly heard and decided four matters involving Aviva and its subsidiary insurers. Reilly found in favour of the insurance company in every case. One of these matters was Ly v Aviva General Insurance, 20-012558/AABS. This decision, where Reilly ruled that Aviva was not required to pay several key benefits to the claimant, is now under scrutiny due to potential conflicts of interest.
The issue here is clear: Reilly did not disclose her impending employment with Aviva to the parties involved in these cases, nor did she recuse herself from hearing cases that would directly impact her future employer. This lack of transparency and failure to address the appearance of bias led to concerns about the integrity of her rulings.
In March 2024, former Tribunal Associate Chair Sara Mintz reviewed Reilly’s decision and found several issues: Reilly failed to disclose a potential conflict of interest, violated procedural fairness, and should have recused herself due to a perceived bias stemming from her connection with Aviva. As a result, Reilly’s decision was voided. Mintz ordered an oral rehearing with a new adjudicator, rejecting a rehearing by transcript due to procedural mismanagement. The Tribunal declined to cover costs for the new hearing, which originally spanned five days and involved five witnesses, some needing interpreters.
The relationship between Reilly and Aviva was sufficient to create a perception of bias, undermining the fairness of the entire process. As a result, Reilly’s decision in Ly v. Aviva was cancelled, and a new hearing was ordered.
What does this mean for the claimant, Ms. Ngoc My Ly, whose case has been delayed and complicated due to this issue? Not only will she need to go through the process again at her own expense, but the Tribunal’s refusal to cover the costs of the rehearing is a significant barrier to access to justice. The delay in resolving her claim is a direct affront to her rights, and the decision also raises concerns about the fairness of the Tribunals handling of similar cases going forward.
Presently, The LAT has not done anything to address concerns about former adjudicator or given any indication on how they are to handle future conflicts of interest with adjudicators.
As personal injury lawyers, we understand how critical it is for individuals to have their cases heard by impartial decision-makers. This case underscores the need for heightened transparency and accountability within administrative tribunals like the LAT. The integrity of the process must always come first to ensure that injured individuals can have faith in the justice system and receive the compensation they deserve.
In August 2023, the Ontario Trial Lawyers Association (OTLA) called for an investigation into the conduct of Aviva Insurance by Ontario’s insurance regulator.
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