Volume. 8 Issue. 17 – May 8, 2024
This week the Tribunal demonstrates what set of circumstances would warrant a rehearing based upon a reasonable apprehension of bias. In the case considered, it seems as if the actions/inactions of a former adjudicator constituted a textbook example for at minimum a perception of bias.
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Reasonable Perception of Bias Involving Former Adjudicator Requires Rehearing
Former Adjudicator’s Clear Conflict of Interest – In a September 2022 decision by the Tribunal, then adjudicator Therese Reilly found against the Applicant Nagesu who was seeking income replacement benefits and medical benefits. In June 2023, the Tribunal sent a letter to both parties, indicating that it was initiating a reconsideration of the decision on the Tribunal’s initiative. This was predicated upon a letter from Applicant’s counsel in May 2023, that confirmed the former adjudicator was now working for Aviva, with a start date of December 2022, with the insurer in the initial hearing being Traders General, wholly owned by Aviva. Ultimately, in 19-008171 v Traders, the Tribunal cancelled the decision of the former adjudicator and ordered a rehearing.
Following receipt of the correspondence from counsel, the Tribunal immediately commenced an investigation,
The findings of fact were as follows:
a. The former adjudicator applied to a job posting for Aviva in May 2022;
b. The former adjudicator had an interview with Aviva in June 2022;
c. The former adjudicator accepted an offer of employment from Aviva in June 2022;
d. The former adjudicator heard four matters involving Aviva/Aviva owned insurers between May 2022 and November 2022;
e. The former adjudicator released a decision in this case on September 12, 2022;
f. The former adjudicator’s appointment to the Tribunal ended on November 4, 2022; and,
g. The former adjudicator started working at Aviva in approximately December, 2022.
Given the findings above, a reconsideration was initiated by the Tribunal, for this matter in addition to three other decisions rendered by the former adjudicator in cases involving Aviva. The Tribunal noted that there were many safeguards in place to ensure that adjudicators do not place themselves in potential conflicts of interest. As part of her initial appointment in 2016, the former adjudicator was required to swear an oath to uphold the duties as a public servant including ethical duties. Of particular note, “the former adjudicator executed the Code of Conduct during her appointment, as recently as February 2022. Adjudicators bear the onus to adhere to these duties and obligations. In this case, the former adjudicator ought to have known that she had the ethical obligation to recuse herself from the hearing in this matter.”
The Tribunal further found that the Code of Conduct included the edict that “Members will not adjudicate any proceeding involving a party or representative with whom he or she has a close personal relationship” and “to act impartially in the conduct of proceedings”. The Tribunal did not agree with the Respondent’s assertion that the Tribunal was at fault for the adjudicator’s actions. It was noted that Tribunals Ontario has a rigorous conflict of interest process, and that “it remains the responsibility of the individual adjudicator to identify and disclose any and all potential conflicts of interest both with the Tribunal and Ethics Executive. This was not done in this matter. If it had been done, I am confident the Tribunal safeguards would have ensured the former adjudicator did not conduct the hearing in this matter.”
The Tribunal noted as well that the former adjudicator, post resignation, continued to inform the Tribunal that she was retiring. At no point did she suggest that she was in fact leaving for alternative employment. In fact, as late as June 2023, she still referred to her “retirement in November 2022”. Once “new and contradictory information came to the attention of the Tribunal, the Tribunal immediately took steps to determine the former adjudicator’s employment details and then remedy the circumstances.”
Based upon the evidence, the Tribunal found that “there are grounds for reconsideration pursuant to Rule 18.2(a). I find that the former adjudicator’s failure to recuse herself resulted in a violation of the rules of procedural fairness on the grounds of a reasonable apprehension of bias.” The Tribunal agreed with Nagesu that “the former adjudicator violated procedural fairness in this matter. The former adjudicator undertook to adjudicate a matter involving her future employer. She had accepted an offer of employment in June 2022, and a month later, conducted a hearing with that employer as the Respondent.” These facts were never disclosed to the Associate Chair of the Tribunal or Tribunals Ontario’s Ethics Executive. The “relationship between the former adjudicator and Respondent/employer is sufficient to find a perception of bias”. There was no requirement to determine whether there was actual bias, rather “there was, at minimum, a perception of bias, which is sufficient to find a violation of procedural fairness.”
This decision was confirmed as covering only decisions involving Aviva or Aviva owned entities. There was found to be no reason to disturb other decisions of the former adjudicator during the relevant time period. The Tribunal found that a rehearing would proceed orally, confirming that a rehearing by transcript alone was not appropriate, as the former adjudicator had made rulings on procedural matters that impacted the course of the hearing.
Both parties sought a variety of expenses to be covered by the Tribunal. However, the Tribunal found that neither party demonstrated the legal authority for such a claim, nor could the Tribunal see any “comparable situation in which a tribunal would absorb legal expenses for parties…The remedy of the hearing”..
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