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Conflict of Interest -Adjudicator

. Sellors v. State Farm

In Sellors v. State Farm (Div Court, 2023) the Divisional Court considers an allegation of conflict raised against a s.128 Insurance Act umpire, and a related waiver issue:
[40] It is axiomatic that an allegation of conflict of interest or reasonable apprehension of bias is to be made to the decision-maker alleged to have the conflict: see, for example, Kivisto v. Law Society of Ontario, 2021 ONSC 6394, leave to appeal dismissed (November 25, 2022, Ont. C.A. #M53147) and the authorities referenced therein. Mr Sellors, did not do that, and I would not permit him to raise it as a fresh issue on this application. See: Perez v. Governing Council of the Salvation Army of Canada (1998), 1998 CanLII 7197 (ON CA), 42 OR (3d) 229 at 233 (CA).

[41] Further, even if there had been a conflict, it is a conflict that Mr Sellors could waive, either expressly or impliedly:
At common law, even an implied waiver of objection to an adjudicator at the initial stages is sufficient to invalidate a later objection … The principle is stated as follows in Halsbury, Laws of England (4th ed.), volume 1, paragraph 71, page 87:
The right to impugn proceedings tainted by the participation of an adjudicator disqualified by interest or likelihood of bias may be lost by express or implied waiver of the right to object. There is no waiver or acquiescence unless the party entitled to object to an adjudicator's participation was made fully aware of the nature of the disqualification and had an adequate opportunity of objecting. Once these conditions are present, a party will be deemed to have acquiesced in the participation of a disqualified adjudicator unless he has objected at the earliest practicable opportunity. (Geneen v. City of Toronto (1999), 1999 CanLII 18721 (ON SCDC), 117 OAC 305, para. 19 (Div. Ct.), quoting Energy and Chemical Workers’ Union and Atomic Energy of Canada Ltd., Re, [1986] FC 103, quoting 1 Hals. (4th), para. 71).
Mr Sellers’ conduct in selecting Mr Volaric as the Umpire, and not objecting to Mr Volaric for a period of years thereafter, is sufficient basis to conclude that any conflict that may have existed was waived.


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