Ritchot v. Manitoba Public Insurance Corporation Date:, 2011 MBCA 25

Citation: Ritchot v. Manitoba Public Insurance Corporation Date: 20110302 et al., 2011 MBCA 25 Docket: AI 11-30-07504 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N: SHERRY DENISE RITCHOT ) S. D. Ritchot ) on her own behalf (Appellant) Applicant ) ) D. P. Pemkowski- and - ) for the Respondent ) Manitoba Public InsuranceMANITOBA PUBLIC INSURANCE ) CorporationCORPORATION ) ) D. G.

Guénette (Respondent) Respondent ) for the Respondent ) Automobile Injury Compensation- and - ) Appeal Commission ) AUTOMOBILE INJURY COMPENSATION ) Chambers motion heard:APPEAL COMMISSION ) February 24, 2011 ) Respondent ) Decision pronounced: ) March 2, 2011 SCOTT C.J.M. 1 The applicant applies for leave to appeal from a decision of the Automobile Injury Compensation Appeal Commission (theCommission), pursuant to the provisions of s. 187 of The Manitoba Public Insurance Corporation Act, R.S.M. 1987, c.

P215 (the MPICAct). 2 There are three well-accepted principles that a judge must consider in deciding whether to exercise judicial discretion infavour of granting leave: 1. The question must be truly one only of jurisdiction or of law, and not one which “involve[s] the court in an assessment or analysisof conflicting factual issues” (Shersty v. Manitoba Public Insurance Corp. (2002), 43 C.C.L.I. (3d) 35, 2002 MBCA 108 (Man. C.A. [InChambers]), at para. 2, Fillion v. Manitoba Public Insurance Corp. (2004), 10 C.C.L.I. (4th) 182, 2004 MBCA 61 (Man. C.A.), andcases cited therein). 2.

The case must be one that warrants the attention of the court. “The issue must be one of importance; not just for the immediatecase, but in determining other similar disputes which are apt to arise in [the] future” (Wuziuk v. Manitoba (Director of Social Services)(No. 2) (1979), (MB CA), 3 Man.R. (2d) 81 (Man. C.A.), at para. 7). 3. There must be an arguable case of substance; i.e., one with a reasonable prospect of success (see Lejins v. Manitoba PublicInsurance Corp. (2003), 50 C.C.L.I. (3d) 1, 2003 MBCA 95 (Man. C.A. [In Chambers])). [Pelchat v.

Manitoba Public Insurance Corp., 2006 MBCA 90, 40 C.C.L.I. (4th) 46, at para. 2] 3 The long and sometimes acrimonious history of these proceedings began after the applicant sustained personal injuries in amotor vehicle accident on October 26, 2004, when the vehicle she was driving was rear-ended. Due to the nature and extent of herbodily injuries, she became entitled to no-fault benefits in accordance with the MPIC Act. At the time of the accident, the applicant hadbeen recently called to the bar and was a self-employed litigation lawyer. Over the course of the ensuing years, numerous disputes arose

between the applicant and MPIC respecting the nature, extent and duration of her various entitlements under the no-fault provisions of the MPIC Act . The issues gradually accumulated, totalling, in the end, 14 distinct internal review decisions. 4 Eventually a pre-hearing meeting was held on November 24, 2006. On October 13 and 14, 2010, a lengthy hearing took place with respect to all of the contested issues. 5 On December 21, 2010, the Commission issued its unanimous decision.

With the exception of the applicant’s entitlement to reimbursement for the cost of certain medications, her appeals from the various decisions of MPIC’s Internal Review Officer were dismissed and the Internal Review Officer’s decisions confirmed. 6 Recognizing, it would seem, that the essential first step to obtain leave to appeal was the identification of an error in law (as opposed to findings of fact or the drawing of fact-based inferences), the applicant presented a variety of arguments with respect to this issue. 7 While at times very difficult to follow, her submissions essentially covered the following grounds. 8 Her principal argument was that the Commission erred in law by failing to advert to s. 138 of the MPIC Act and s. 10(1) of Reimbursement of Expenses (Universal Bodily Injury Compensation) Regulation , Man.

Reg. 40/94 (the regulation), and thereby committed legal error. In her submission, the collective decisions of the Commission that were unfavourable to her make it clear that had the Commission adverted to the appropriate statutory provisions, the result would have been in her favour. 9

Section 138 of the MPIC Act provides as follows: Corporation to assist in rehabilitation 138 Subject to the regulations, the corporation shall take any measure it considers necessary or advisable to contribute to the rehabilitation of a victim, to lessen a disability resulting from bodily injury, and to facilitate the victim’s return to a normal life or reintegration into society or the labour market. 10 The relevant portion of s. 10(1) of the regulation reads: Rehabilitation expenses 10(1) Where the corporation considers it necessary or advisable for the rehabilitation of a victim, the corporation may provide the victim with any one or more of the following: . . . . . (

e) funds for occupational, educational or vocational rehabilitation that is consistent with the victim’s occupation before the accident and his or her skills and abilities after the accident, and that could return the victim as nearly as practicable to his or her condition before the accident or improve his or her earning capacity and level of independence. 11 In my opinion, the submission is entirely without merit.

While it is true that the Commission in its compendious reasons made no specific reference to these provisions, it did incorporate in its reasons and address the consequential statutory and regulatory provisions governing compensation and reimbursement that the applicant was potentially entitled to as a result of her injury. Furthermore, reading the reasons as a whole, it is clear that the Commission was acutely aware of the governing principles and complied with them. 12 Much reliance was placed by the applicant on the lengthy decision of the Newfoundland Court of Appeal in Osmond v.

Newfoundland (Workers’ Compensation Commission) , 2001 NFCA 21, 10 C.C.E.L. (3d) 56 . In this decision, the majority, after a meticulous review of the reasons for decision of the Workers’ Compensation Commission (endorsed by the Workers’ Compensation Appeal Tribunal) and the reasons for judgment upon review by the Newfoundland Supreme Court, Trial Division, reversed the factual finding of the Commission, as confirmed by the reviewing judge, on the basis that the Commission had overlooked strong evidence of the claimant’s medical condition due to improper reliance on “outdated medical opinions” (at para. 144).

These are far from the facts before this court. 13 It is manifest that the decisions made by the Commission, without exception, were fact-based and entirely dependent upon the material before it. Fundamentally, the applicant disagrees with the Commission’s view of the level of her incapacity arising from the accident and its duration.

The Commission’s response to the applicant’s contentions was, correctly, to assess each issue in accordance with the medical and other evidence. 14 While not identified as a potential ground of appeal, the applicant is greatly upset by the lengthy delay prior to the hearing of the Commission in October 2010.

But it is clear that the delays were caused in the main by the number and scope of the issues that the applicant wished to pursue with the Commission; there is certainly no factual support for the suggestion that the Commission was deliberately dragging its feet. 15 Finally, the applicant, during oral argument, emphasized on numerous occasions how inappropriate it was – in her view – that a complaint was made against her to the Law Society of Manitoba, arising from her behaviour during one of her early appearances before the Commission.

In the result, she was found guilty of professional misconduct and disciplined. While it was difficult to

ascertain the relevance of this complaint to the principles to be addressed on this leave application, I can only assume that the applicant was implying some form of bias on the part of the Commission when it made the complaint. There is no merit in this assertion. 16 In the end, I conclude that the applicant has failed to identify any potential errors of law on the part of the Commission.

While this determination is sufficient to dispose of the application, I would add that it is difficult to see how any of the points raised by the applicant were potentially of such importance as to justify granting leave. 17 In all of the circumstances, the application is dismissed, without costs. ___________________________ C.J.M.