Harder v. Manitoba Public Insurance Corp. et al., (2012) 275 Man.R.(2d) 298 (CA)

• Judge: Freedman, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 09, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 275 Man.R.(2d) 298 (CA);2012 MBCA 20

Harder v. MPIC (2012), 275 Man.R.(2d) 298 (CA);

      538 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. MR.043

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

(AI 11-30-07701; 2012 MBCA 20)

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

Manitoba Court of Appeal

Freedman, J.A.

March 14, 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., granted leave to appeal on a specific question only.

Insurance - Topic 5066

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Reimbursement for medical expenses - [See Insurance - Topic 5080 ].

Insurance - Topic 5080

Automobile Insurance - Compulsory government schemes - Bodily injury and death benefits - Appeals or judicial review (incl. leave to appeal) - 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, finding that (1) Harder's literal interpretation of the Manitoba Public Insurance Corporation Act and regulations ignored their purpose and intent; (2) MPIC was an auto insurer that extended coverage for expenses that were not covered by the primary payer, Manitoba Health; and (3) Harder's position was incompatible with MPIC's objective of ensuring that insurance premiums remained stable, predictable and affordable - 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 sought leave to appeal, raising as an issue, for the first time, the effect of 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" - Harder asserted that s. 6 conclusively answered the Commission's concern about a lack of controls and oversight - The Manitoba Court of Appeal, per Freedman, J.A., granted leave to appeal on a specific question regarding the effect of s. 6 only - The Commission properly considered the purpose of the legislation - Its conclusion would likely be deferred to on appeal - Apart from the argument based on s. 6, Harder would have little chance of success since his case depended on a literal, rather than a purposive, interpretation - However, s. 6 was not brought to the Commission's attention - The question of how s. 6 fit into the regime created by the Act and the Regulation did not appear to have been judicially considered - In light of the uncertainty that existed as to the meaning and implications of s. 6, the interests of justice required that leave be granted on that issue.

Insurance - Topic 5283.1

Automobile insurance - Compulsory government schemes - Insurance corporations, commissions and tribunals - Insurer's decisions - Appeals - [See Insurance - Topic 5080 ].

Practice - Topic 8876

Appeals - Leave to appeal - Grounds for granting leave - [See Insurance - Topic 5080 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Insurance - Topic 5080 ].

Cases Noticed:

Pelchat v. Manitoba Public Insurance Corp. et al., [2006] Man.R.(2d) Uned. 60; 2006 MBCA 90, refd to. [para. 12].

Winnipeg Airports Authority Inc. v. EllisDon Corp. (2011), 268 Man.R.(2d) 66; 520 W.A.C. 66; 2011 MBCA 51, refd to. [para. 12].

Carpenter Fishing Corp. et al. v. Canada, [2002] B.C.A.C. Uned. 47; 2002 BCCA 104, refd to. [para. 13].

4784881 Manitoba Ltd. v. Khidir (2008), 228 Man.R.(2d) 81; 427 W.A.C. 81; 2008 MBCA 49, refd to. [para. 13].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 31].

Shier v. Manitoba Public Insurance Corp. et al. (2008), 231 Man.R.(2d) 198; 437 W.A.C. 198; 2008 MBCA 97, refd to. [para. 32].

Krzysik v. Manitoba Public Insurance Corp. (2008), 225 Man.R.(2d) 239; 419 W.A.C. 239; 2008 MBCA 29, refd to. [para. 32].

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. 33].

Gurvey v. Manitoba Public Insurance Corp. et al. (2010), 258 Man.R.(2d) 139; 499 W.A.C. 139; 2010 MBCA 86, refd to. [para. 34].

Counsel:

M.D. Jodoin, for the applicant;

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

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

This Chambers motion was heard on February 9, 2012, by Freedman, J.A., of the Manitoba Court of Appeal, who pronounced the following decision on March 14, 2012.