LAT conflict of interest concerns need to be addressed

By Tony Poland, LegalMatters Staff • A disturbing narrative is circulating involving Licence Appeal Tribunal (LAT) adjudicators who have allegedly rendered insurance-friendly decisions and then accepted offers of employment from insurance companies. 

In one case, the Ontario Trial Lawyers Association (OTLA) has alleged that an adjudicator rendered numerous decisions in favour of a specific insurer after having received an offer of employment from that same insurer. If substantiated, those allegations raise significant conflict of interest concerns and cry out for investigation, says Barrie-area litigator Steve Rastin.

Some sort of comprehensive review is necessary at the tribunal to ensure the public continues to have faith in the quasi-judicial body that handles insurance claims disputes, he adds.

The OTLA recently called for an immediate investigation into “the conduct of Aviva Insurance and its subsidiaries.”

Hiring called into question

The association released a statement saying it had learned that Aviva hired a government insurance adjudicator when she was employed with the tribunal. 

The OTLA stated that what is at issue is “the troubling revelation” that the adjudicator was offered and accepted a position with the insurer in June 2022 but stayed on with the LAT for five months, “rendering more than 10 decisions, all in favor of insurance companies, including Aviva Insurance.”

“This unbelievable situation shocks and saddens me. 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,” said OTLA president Laurie Tucker. “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.” 

For her part, the adjudicator in question told CBC News her decisions “including the ones during this time period, were made based on the facts, evidence, and law as presented, without bias.”

In a statement to CBC, an Aviva spokesperson said they were unaware the adjudicator continued to oversee cases involving the insurer until after those matters were decided and that she ought to have recused herself from any matters involving Aviva.

Rastin, senior counsel at Rastin Gluckstein Lawyers, applauds the OTLA move, saying the public must be assured the LAT renders decisions in a manner that is not only fair and objective, but which clearly appears to be fair and objective.

‘This situation has the potential to undermine the public’s confidence’

“This situation has the potential to undermine the public’s confidence in the entire process,” he tells LegalMattersCanada.ca. “It is bad for the courts, the government, accident claimants and I would argue that it is even bad for insurance companies because people should have some faith in the industry. How can the public have faith in the system when things like this come to light?

“The perception of fairness is important and I would think that the average person might wonder why somebody who is negotiating to go to work somewhere, even if they hadn’t yet accepted the job, is rendering decisions involving that potential employer,” Rastin adds. “Your perceived objectivity may be impacted by the fact that you are talking to the managers in the company that you want to work for as you render LAT decisions.”

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He says one must be careful to assume any tribunal decisions made are fundamentally flawed.

“However, I can tell you that I have heard that people who lost these decisions are very surprised by what happened,” Rastin says.

The entire concept of the LAT system is to provide “fast, easy, cheap, effective access for a fair resolution of disputes,” he says.

But there are flaws, Rastin notes.

“You have to pay your own cost of the hearing, so if you hire a lawyer, you don’t get any cost awards if you win the way you would in a tort case,” he says “If you need doctors’ reports to support your case, you must pay for them out of pocket. How is the average person supposed to achieve justice when they can’t afford to even dispute what they perceive is an unjust denial?

‘Slow, expensive, cumbersome and complicated’

“What we have is a LAT system that is slow, expensive, cumbersome and complicated,” Rastin adds. “Then, with these latest allegations, we have the cherry on top that the system may also lack the perception of transparency and fairness.”

You don’t actually have to be a lawyer to be a LAT adjudicator, nor do you need to be legally trained, he says. 

“There are people working as adjudicators who do not have particular expertise in what is a very complex area of the law,” says Rastin. “What we are really seeing is an erosion of the concept of no-fault benefits in Ontario to the point where the system is effectively useless.

“If an insurance company denies your claim, you are supposed to get to a case conference relatively quickly,” he adds. “In reality, it takes months, if not years, to get your case heard. It is not at all efficient. This cannot be right.”

Rastin says he would hope “management at Aviva didn’t realize what was going on” but says the situation must still be addressed.

Claiming everything is above board because a person only accepted a new job offer after quitting the old one is a specious argument, Rastin says.

“The relevant date should be when the person first applied for the job,” he says. “I could have a conversation about working for an insurer and continue those discussions for the next year, meanwhile still making decisions that impact my potential new employer.

Cooling off period

“My takeaway on this is that the province ought to consider some sort of regulation that requires a cooling off period, as they do with ministers who leave the government for the private sector,” he adds.

Rastin says he believes any decisions rendered that may have aroused suspicions of conflict of interest “should be sent back for reconsideration.”

“We had a scenario in criminal law where a pathologist’s work was called into question, he says. “Cases were reviewed and criminal convictions were overturned. An expert making questionable decisions was sufficient to prompt a reconsideration. If an adjudicator fails to show the required transparency and objectivity, that should be enough to trigger the same review my opinion.”

Rastin quoted the Lord Chief Justice of England Gordon Hewart who in 1924 said: “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

“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,” Hewart said.

That still holds true today, says Rastin.

“How can justice be seen to be done when someone is rendering a decision and then a few weeks later is actually working for one of the parties involved,” he says. “Even if that decision is fair and just, there may still be the perception that it might not be right.”