Harder v. Manitoba Public Insurance Corp. et al., 2012 MBCA 101

• Judge: Steel, Hamilton and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 10, 2012
• Jurisdiction: Manitoba
• Citations: 2012 MBCA 101;(2012), 284 Man.R.(2d) 254 (CA)

Harder v. MPIC (2012), 284 Man.R.(2d) 254 (CA);

      555 W.A.C. 254

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. NO.001

Erdman Harder (appellant/appellant) v. Manitoba Public Insurance Corporation (respondent/respondent) and Automobile Injury Compensation Appeal Commission (respondent)

(AI 11-30-07701; 2012 MBCA 101)

Indexed As: Harder v. Manitoba Public Insurance Corp. et al.

Manitoba Court of Appeal

Steel, Hamilton and Chartier, JJ.A.

October 25, 2012.

Summary:

Harder was injured in a motor vehicle accident. He travelled overseas for a surgical procedure. Manitoba Health denied his claim for reimbursement on the basis that the procedure was an "insured service" that was available in Manitoba. Harder's request for reimbursement from Manitoba Public Insurance Corp. was denied. The Automobile Injury Compensation Appeal Commission denied Harder's appeal. Harder sought leave to appeal.

The Manitoba Court of Appeal, per Freedman, J.A., in a decision reported at (2012), 275 Man.R.(2d) 298; 538 W.A.C. 298, granted leave to appeal on a specific question only.

The Manitoba Court of Appeal dismissed the appeal.

Administrative Law - Topic 3445.2

Judicial review - General - Practice - Issues not raised before tribunal - Harder was injured in a motor vehicle accident - He travelled overseas for a surgical procedure - Manitoba Health denied his claim for reimbursement on the basis that the procedure was an "insured service" that was available in Manitoba - Harder's request for reimbursement from Manitoba Public Insurance Corp. (MPIC) was denied - The Automobile Injury Compensation Appeal Commission denied Harder's appeal - Harder obtained leave to appeal on an issue not raised before the Commission - The Manitoba Court of Appeal, having determined that the standard of review was reasonableness, discussed the level of deference resulting from the new issue on appeal - Applying the reasonableness standard to an issue not raised before the tribunal posed unique challenges - There was a direct correlation between the standard of reasonableness and the reasons given by the tribunal - The "inescapable reality" was that since the issue was never raised, there were no express reasons to review on that issue - Since the standard of reasonableness could not be applied to non-existent reasons, it was to be applied "to the reasons that could have been offered to support the decision-maker's conclusion" - Appellate intervention would be unjustified if there was a reasonable basis on which the Commission could have decided as it did - See paragraphs 7 to 15.

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - [See Administrative Law - Topic 3445.2 ].

Insurance - Topic 5066

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Reimbursement for medical expenses - Harder was injured in a motor vehicle accident - He travelled overseas for a surgical procedure - Manitoba Health denied his claim for reimbursement on the basis that the procedure was an "insured service" that was available in Manitoba - Harder's request for reimbursement from Manitoba Public Insurance Corp. (MPIC) was denied - The Automobile Injury Compensation Appeal Commission denied Harder's appeal - The Commission noted that if Manitobans who were injured in accidents could obtain medical care anywhere they chose at MPIC's cost, the result would "lack the necessary controls and oversight to ensure financially responsible management of bodily injury claims" - Harder obtained leave to appeal on an issue not raised before the Commission: whether s. 6 of the Reimbursement of Expenses (Universal Bodily Injury Compensation) Regulation, under which expenses payable were "subject to a maximum of such amount as [MPIC] considers reasonable and proper for the care", conclusively answered the Commission's concern about a lack of controls and oversight - The Manitoba Court of Appeal dismissed the appeal - The Commission made it clear that it was Manitoba Health, not MPIC, that had the primary obligation to cover insured medical expenses - Leave was not granted to review that conclusion - The statement regarding "controls and oversight" was an obiter comment - Further, entitlement was established under s. 136 of the Manitoba Public Insurance Act and s. 5 of the Regulation - Section 6, which established a maximum ceiling, was only considered once entitlement was confirmed under s. 5 - Since entitlement was rejected, there was no reason for the Commission to consider s. 6 - As there was a reasonable basis for the Commission to have decided as it had, appellate intervention was unjustified - See paragraphs 16 to 21.

Insurance - Topic 5283.1

Automobile insurance - Compulsory government schemes - Insurance corporations, commissions and tribunals - Insurer's decisions - Appeals - [See Administrative Law - Topic 3445.2 and Insurance - Topic 5066 ].

Cases Noticed:

Shier v. Manitoba Public Insurance Corp. et al., [2007] Man.R.(2d) Uned. 40; 51 C.C.L.I.(4th) 169; 2007 MBCA 76, refd to. [para. 7].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 9].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 2012 SCC 35, refd to. [para. 9].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 10].

Halifax (Regional Municipality) v. Canada (Minister of Public Works and Government Services) (2012), 431 N.R. 10; 2012 SCC 29, refd to. [para. 10].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 10].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 10].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 10].

Prairie Coach Charter Services Ltd. v. Motor Transport Board (Man.) (2012), 284 Man.R.(2d) 28; 555 W.A.C. 28; 2012 MBCA 95, refd to. [para. 10].

Bates v. Welcher (2001), 153 Man.R.(2d) 281; 238 W.A.C. 281; 2001 MBCA 33, refd to. [para. 12].

Kaiman Estate v. Graham Estate (2009), 245 O.A.C. 130; 2009 ONCA 77, refd to. [para. 12].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 13].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Inter Pipeline Fund v. Energy Resources Conservation Board (Alta.) et al. (2012), 533 A.R. 331; 557 W.A.C. 331; 2012 ABCA 208, refd to. [para. 15].

Statutes Noticed:

Manitoba Public Insurance Corporation Act, R.S.M. 1987, c. P-215; C.C.S.M., c. P-215, sect. 136 [para. 5].

Manitoba Public Insurance Corporation Act Regulations (Man.), Reimbursement of Expenses (Universal Bodily Injury Compensation) Regulation, Man. Reg. 40/94, sect. 5, sect. 6 [para. 5].

Reimbursement of Expenses (Universal Bodily Injury Compensation) Regulation - see Manitoba Public Insurance Corporation Act Regulations (Man.).

Counsel:

M.D. Jodoin, for the appellant;

C.K. Lau, for the respondent, Manitoba Public Insurance Corp.;

D.G. Guénette, for the respondent, Automobile Injury Compensation Appeal Commission.

This appeal was heard on September 10, 2012, by Steel, Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. On October 25, 2012, Chartier, J.A., delivered the following judgment for the court.