Impartiality is a fundamental qualification for adjudicators. In the oft-cited words of Lord Hewart “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
A recent reconsideration decision from the Licence Appeal Tribunal (LAT) illustrates the consequences of justice not being seen to be done.
In May 2022, LAT adjudicator Thérèse Reilly applied to a job posted by Aviva General Insurance, in their litigation department.
After interviewing her in June 2022, Aviva offered her employment, which Reilly accepted. 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 subsidiaries – her future employer. Reilly found in favour of the insurance company in every case.
One of these matters was Ly v. Aviva General Insurance, 20-012558/AABS.
In this decision, Reilly decided that Aviva was not obligated to pay its insured income replacement benefits, attendant care benefits, or for treatment plans (many of which had been incurred).
Ontario Trial Lawyers Association Calls for Investigation
In August 2023, the Ontario Trial Lawyers Association called for an investigation into the conduct of Aviva Insurance by Ontario’s insurance regulator. The press release is available here.
Former Tribunal Associate Chair, Sara Mintz, initiated a reconsideration of Reilly’s decision. In her March 2024 reconsideration decision, former Associate Chair Mintz found:
- Reilly did not disclose a potential conflict of interest to the parties, the LAT, or Tribunals Ontario’s Ethics Executive.
- Reilly ought to have known that she had an ethical obligation to recuse herself from hearing this matter.
- Reilly violated procedural fairness in this matter.
- The relationship between Reilly and Aviva was sufficient to find a perception of bias.
- Reilly’s decision is cancelled.
- A rehearing by transcript alone would be inappropriate because Reilly made rulings on procedural matters and managed the hearing in a way that impacted the way in which evidence and submission were presented.
- The remedy is an oral rehearing of the matter with a new adjudicator. The Tribunal refused to bear the expenses of the parties for the new hearing. The original hearing involved five witnesses (some requiring an interpreter) and lasted five days.
At the time of writing, the Law Society of Ontario directory lists Marie Therese Catherine Reilly as “Not Practising Law.”
The LAT has not done anything to address concerns about former adjudicator Thérèse Reilly or future conflicts of interest with adjudicators.
The Applicant, Ms. Ngoc My Ly, now has no choice but to go through the hearing again at her own expense. This is an afront to the fundamental principles of access to justice and fairness.
The new hearing begins on November 4, 2024.
