Healthcare Employees' Benefit Plan et al. v. Terhoch, 2015 MBQB 56

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 01, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 56;(2015), 316 Man.R.(2d) 256 (QB)

Healthcare Employees v. Terhoch (2015), 316 Man.R.(2d) 256 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.019

Healthcare Employees' Benefit Plan by its Trustees Bob Malazdrewich, Monica Girouard, Doug Laurie, Bob Romphf, Ken Swan, Gerry Gattinger, Cynthia Ostapyk, Janet Wilcox-McKay, Ryan Green and Jason Lange (applicants) v. Sherry Lee Terhoch (respondent)

(CI 14-01-87758; 2015 MBQB 56)

Indexed As: Healthcare Employees' Benefit Plan et al. v. Terhoch

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

April 1, 2015.

Summary:

The Trustees of the Healthcare Employees' Benefit Plan challenged, under the appeal provisions of the Arbitration Act, C.C.S.M., c. A-120, a single arbitrator's award that ordered a "redo" of Terhoch's claim for total disability payments and made an interim award in her favour.

The Manitoba Court of Queen's Bench set aside the award and sent the issue back to the arbitrator for completion.

Arbitration - Topic 944

The submission - Scope of submission - Jurisdiction of arbitrators - The Manitoba Court of Queen's Bench stated that "It is well established law that an arbitrator must decide neither more nor less than the dispute submitted to him and he is not justified in deciding the rights of the parties in lieu thereof according to what he considers fair and equitable  ..." - See paragraph 29.

Arbitration - Topic 7959

Judicial review (incl. appeals) - Jurisdiction of arbitrator - General - Excess of jurisdiction - [See Arbitration - Topic 8573 ].

Arbitration - Topic 7963

Judicial review - Jurisdiction of arbitrator - General - Equitable jurisdiction - The Trustees of the Healthcare Employees' Benefit Plan (HEB) challenged, under the appeal provisions of the Arbitration Act, a single arbitrator's award that ordered a "redo" of Terhoch's claim for total disability payments and made an interim award in her favour - Section 31 of the Act provided that: "An arbitral tribunal shall decide a matter in dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies." - The Manitoba Court of Queen's Bench stated that the issue submitted to arbitration under the Arbitration Agreement was whether HEB was correct in declaring that Terhoch was not disabled from any occupation - "Section 31 of the Act does not come into play in the absence of a finding by the arbitrator that Ms. Terhoch's claim has been proved. The arbitrator can only make an award giving equitable relief once the issue referred to arbitration has been decided in her favour." - See paragraph 34.

Arbitration - Topic 7997

Judicial review of award - Jurisdiction of arbitrator - Error of law on the face of the record - Adjudication of question not referred to arbitrator - [See Arbitration - Topic 8573 ].

Arbitration - Topic 8301.1

Judicial review (incl. appeals) - Grounds - General - Questions of law - The Trustees of the Healthcare Employees' Benefit Plan challenged, under the appeal provisions of the Arbitration Act, a single arbitrator's award that ordered a "redo" of Terhoch's claim for total disability payments and made an interim award in her favour - At issue, inter alia, was whether leave to appeal should be granted - The Manitoba Court of Queen's Bench granted leave, finding that the statutory requirements for leave had been satisfied - The matters at stake were sufficiently important - The determination of the questions would significantly affect the rights of the parties where there was a significant amount of money in issue from the point of view of Terhoch and the company, and the arbitrator's interpretation would impact the rights of the other persons covered by the plan - The arbitrator correctly stated the issue before him, yet he failed to decide the issue and provided no analysis of what provisions in the agreement permitted him to refrain from dealing with the issue - That he made an award which did not address the question referred to arbitration and failed to explain why in his reasons, gave rise to a question of law for which leave should be granted - See paragraphs 23 to 26.

Arbitration - Topic 8301.1

Judicial review (incl. appeals) - Grounds - General - Questions of law - [See Arbitration - Topic 8573 ].

Arbitration - Topic 8302

Judicial review (incl. appeals) - Grounds - General - Mixed questions of fact and law - The Trustees of the Healthcare Employees' Benefit Plan (HEB) challenged, under the appeal provisions of the Arbitration Act, a single arbitrator's award that ordered a "redo" of Terhoch's claim for total disability payments and made an interim award in her favour - At issue, inter alia, was whether leave to appeal should be granted - The Manitoba Court of Queen's Bench stated that "With respect to the other broad issue of whether it was reasonable for him to conclude that had failed to live up to its assessment obligations, I doubt that the argument raises a question of law, as opposed to mixed law and fact. The parties and arbitrator all agreed on the issue for arbitration and the onus of proof. Although the arbitrator used some phrases such as that she was denied natural justice, 'the opportunity to know the case against you', HEB's complaint really amounts to an argument that HEB misapplied the facts of the case to the onus of proof." - See paragraph 26.

Arbitration - Topic 8573

Judicial review (incl. appeals) - Practice - Remittal of award - Circumstances when remittal appropriate - The Trustees of the Healthcare Employees' Benefit Plan (HEB) challenged, under the appeal provisions of the Arbitration Act, a single arbitrator's award that ordered a "redo" of Terhoch's claim for total disability payments and made an interim award in her favour - The Manitoba Court of Queen's Bench granted leave to appeal on a question of law and allowed the appeal - The issue submitted to arbitration under the Arbitration Agreement was whether HEB was correct in declaring that Terhoch was not disabled from any occupation - The court stated that "The arbitrator did not in his reasons explain why he decided an issue which was different from that submitted to him. The award made is not intelligible in that the foundation is not capable of being understood. It is not transparent in the sense that there is no connection between the matter referred for arbitration and the determination made. It is not justifiable in the sense that the arbitrator exceeded his authority in ordering a redo and in making an award in the absence of a finding of the disability. Nor is there an alternative meaning to the issue submitted for arbitration, the limitation on evidence to be considered at the arbitration and the need for proof of total disability from any occupation before an order for payment of benefits can be made. ..." - Where the arbitrator had exhibited knowledge of the medical issues and no one had suggested that his view of the case was tainted, it was economical and efficient to have him complete his function - The court referred the issue back to the arbitrator for completion.

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - The Trustees of the Healthcare Employees' Benefit Plan challenged, under the appeal provisions of the Arbitration Act, a single arbitrator's award that ordered a "redo" of Terhoch's claim for total disability payments and made an interim award in her favour - At issue, inter alia, was whether the plan required leave to appeal - The Manitoba Court of Queen's Bench stated that "Appeal is a creature of statute. Unless there is a statutory provision authorizing it, there is no right of appeal. The only limitation on finality of the award is stated to be subject to the Act. The Member Agreement refers to the limitation as 'the review provisions under' the Act." - The court held that there was no appeal as of right because nothing in the Arbitration Agreement provided for a right of appeal - See paragraph 22.

Cases Noticed:

Loewen v. Manitoba Teachers' Society (2015), 315 Man.R.(2d) 123; 630 W.A.C. 123; 2015 MBCA 13, folld. [para. 3].

Seneviratne v. Seneviratne (1998), 222 A.R. 65; 1998 ABQB 289, refd to. [para. 22].

Farm Credit Canada v. National Bank of Canada (2011), 382 Sask.R. 162; 2011 SKQB 321, refd to. [para. 22].

Manitoba Teachers' Society v. North (2005), 199 Man.R.(2d) 149; 2005 MBQB 292, refd to. [para. 24].

Faubert & Watts v. Temagami Mining Co., [1959] O.J. No. 29; 17 D.L.R.(2d) 249 (C.A.), affd. [1960] S.C.R. 235, refd to. [para. 29].

Rivergate Properties Inc. v. West St. Paul (Rural Municipality) (2006), 205 Man.R.(2d) 230; 375 W.A.C. 230; 2006 MBCA 76, refd to. [para. 37].

CICT, Global Calgary et al. v. Communications, Energy and Paperworkers' Union of Canada, Local M1 (2014), 589 A.R. 364; 2014 ABQB 329, refd to. [para. 40].

Statutes Noticed:

Arbitration Act, S.M. 1997, c. 4; C.C.S.M., c. A-120, sect. 31 [para. 15].

Counsel:

Darcie C. Yale, for the applicants;

Kathy McIlroy and Shannon Carson, for the respondent.

This appeal was heard by Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on April 1, 2015.