Manitoba Public Insurance Corp. v. University of Waterloo et al., (2007) 220 Man.R.(2d) 58 (CA)

• Judge: Steel, Hamilton and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 21, 2007
• Jurisdiction: Manitoba
• Citations: (2007), 220 Man.R.(2d) 58 (CA);2007 MBCA 107

MPIC v. Waterloo Univ. (2007), 220 Man.R.(2d) 58 (CA);

      407 W.A.C. 58

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. SE.003

The Manitoba Public Insurance Corporation (plaintiff/appellant) v. University of Waterloo and Allyson K. Graham (defendants/respondents) and Elba Redhead and Marcel McKay (third parties/respondents)

(AI 06-30-06394; 2007 MBCA 107)

Indexed As: Manitoba Public Insurance Corp. v. University of Waterloo et al.

Manitoba Court of Appeal

Steel, Hamilton and Freedman, JJ.A.

August 17, 2007.

Summary:

A motor vehicle owned by the defendant, University of Waterloo, and operated by the defendant, Graham, struck a young boy in Cranberry Portage, Manitoba. Pursuant to the Personal Injury Protection Plan (PIPP) under Part 2 of the Manitoba Public Insurance Corporation Act, the Manitoba Public Insurance Corp. (MPIC) had provided and would provide substantial amounts as compensation for the child's injuries. MPIC had a right of subrogation under s. 77 of the Act and was entitled to recover the amount of compensation from the defendants, who were non-residents of Manitoba. The defendants argued that since recovery was stated in s. 77 to be based on principles of subrogation, the amount to be recovered by MPIC had to be limited by common law tort principles relating to damages. By way of a special case pursuant to rule 22 of the Queen's Bench Rules, the parties sought the court's opinion on the following questions: (a) what was the nature of an action brought under s. 77 of the Act and what rights of recovery flowed therefrom to MPIC; and (b) was MPIC's right of subrogation in s. 77(1) subject to common law tort principles such as remoteness, foreseeability and causation, such that the amounts sought by MPIC from the defendants had to be proven and justified according to those principles and had to constitute PIPP compensation, according to the terms of s. 77(1).

The Manitoba Court of Queen's Bench, in a decision reported at 200 Man.R.(2d) 138, answered the questions as follows: (1) the nature of an action brought under s. 77 was one in tort brought by MPIC as subrogee of the victim recipient of compensation. MPIC acquired no more or less than that person had. Therefore, MPIC's right was to bring an action in tort to recover up to the amount of the compensation which it had paid or was obligated to pay; and (2) MPIC's right of subrogation in s. 77(1) was subject to common law tort principles such as remoteness, foreseeability and causation, such that the amounts sought by MPIC from the defendants had to be proven and justified according to those principles and had to constitute PIPP compensation, according to the terms of s. 77(1). MPIC appealed.

The Manitoba Court of Appeal dismissed the appeal. The court agreed with the conclusion of the Queen's Bench judge that MPIC was entitled to recover up to the amount of the compensation which it had paid. However, the court held that it would remove from the judge's answer to the first question, the words "or is obligated to pay". The court affirmed the judge's answers to the questions in the special case with that modification.

Insurance - Topic 5242

Automobile insurance - Compulsory government schemes - Subrogation or indemnity - Limitations - [See Insurance - Topic 5244 ].

Insurance - Topic 5244

Automobile insurance - Compulsory government schemes - Subrogation or indemnity - Conditions precedent - Section 77(1) of the Manitoba Public Insurance Corporation Act subrogated the Manitoba Public Insurance Corp. (MPIC) to the rights of an injured person and allowed MPIC to recover the amount of Personal Injury Protection Plan (PIPP) compensation which it had paid to the injured person from any nonresident of Manitoba, to the extent that the nonresident was responsible for the accident - On a special case pursuant to rule 22, a Queen's Bench judge held that the nature of an action brought under s. 77 was one in tort brought by MPIC as subrogee of the victim recipient of compensation and MPIC acquired no more or less than that person had - Therefore, MPIC's right was "to bring an action in tort to recover up to the amount of the compensation which it has paid or is obligated to pay" - The judge also held that MPIC's right of subrogation in s. 77(1) was subject to common law tort principles such as remoteness, foreseeability and causation, such that the amounts sought by MPIC from the defendants had to be proven and justified according to those principles and had to constitute PIPP compensation, according to the terms of s. 77(1) - The Manitoba Court of Appeal dismissed an appeal - The court affirmed the judge's answers to the questions stated in the special case, with the exception that it removed the words "or is obligated to pay".

Word and Phrases

Subrogated - The Manitoba Court of Appeal considered the meaning of the word "subrogated" in s. 77(1) of the Manitoba Public Insurance Corporation Act, R.S.M. 1987, c. P-215; C.C.S.M., c. P-215 - See paragraphs 21 to 52.

Cases Noticed:

McMillan v. Thompson (Rural Municipality) (1997), 115 Man.R.(2d) 2; 139 W.A.C. 2 (C.A.), refd to. [para. 7].

Manitoba Public Insurance Corp. v. Puddicombe (2003), 180 Man.R.(2d) 133; 310 W.A.C. 133; 2003 MBCA 141, refd to. [para. 11].

Workers' Compensation Board (Man.) et al. v. Mills et al. (2005), 201 Man.R.(2d) 112; 366 W.A.C. 112; 2005 MBCA 140, refd to. [para. 16].

Heinz (H.J.) Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441; 347 N.R. 1; 2006 SCC 13, refd to. [para. 22].

Manulife Bank of Canada v. Conlin et al., [1996] 3 S.C.R. 415; 203 N.R. 81; 94 O.A.C. 161, refd to. [para. 34].

R. v. Hinchey (M.F.) and Hinchey (B.A.), [1996] 3 S.C.R. 1128; 205 N.R. 161; 147 Nfld. & P.E.I.R. 1; 459 A.P.R. 1, refd to. [para. 44].

Statutes Noticed:

Manitoba Public Insurance Corporation Act, R.S.M. 1987, c. P-215; C.C.S.M., c. P-215, sect. 72, sect. 73, sect. 77 [para. 5].

Authors and Works Noticed:

Dolden, Eric A., Practical and Substantive Aspects of Subrogation (1993), 4 C.I.L.R. 121, p. 122 [para. 37].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 123 to 125 [para. 44]; 158, 159 [para. 32]; 343, 344 [para. 34].

Counsel:

K.T. Addison and T.M. Brown, for the appellant;

C.A. Sherbo and L.J. Foley, for the respondents, University of Waterloo and Allyson K. Graham.

This appeal was heard on February 21, 2007, before Steel, Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Freedman, J.A., on August 17, 2007.