Manitoba Public Insurance Corp. v. Date:, 2011 MBCA 87

Citation: Manitoba Public Insurance Corp. v. Date: 20111109 Public Utilities Board, 2011 MBCA 87 Docket: AI 11-30-07579 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : ) J. F. Rook, Q.C. THE MANITOBA PUBLIC INSURANCE ) R. K. Agarwal and CORPORATION ) K. L. Kalinowsky ) for the Applicant Applicant ) ) C. A. Everard Grammond and ) N. D. M. Hamilton - and - ) for the Respondent ) ) Chambers motion heard: THE PUBLIC UTILITIES BOARD ) September 22, 2011 ) Respondent ) Decision pronounced: ) November 9, 2011 FREEDMAN J.A.

INTRODUCTION 1 The Manitoba Public Insurance Corporation (MPI) seeks leave to appeal three orders (the Orders) of the Public Utilities Board (the Board) on questions of law or jurisdiction. The Orders required MPI to “allocate PIPP [Personal Injury Protection Plan] costs associated with claims by inter-provincial truckers to a non-Basic line of business.” MPI says that the Board had no jurisdiction to impose such a requirement and erred in law in doing so. MPI was late filing its notice of motion for leave, so it also seeks an extension of time for its leave application.

I have concluded that the extension of time, and leave to appeal, should be granted. BACKGROUND 2 MPI administers the compulsory automobile insurance scheme established pursuant to The Manitoba Public Insurance Corporation Act , C.C.S.M., c. P215 (the Act ). That compulsory scheme is referred to as the “Basic” line of business, and is regulated by the Board. MPI also administers a non-compulsory scheme under the Act , providing Extension and Special Risk Extension insurance, which is not regulated by the Board.

That scheme is referred to as the Extension, SRE or non-Basic line of business. 3 Pursuant to The Crown Corporations Public Review and Accountability Act , C.C.S.M., c. C336 (the Crown Corporations Act ), rates for MPI Basic services are reviewed by the Board and no change in such rates may be introduced without the Board’s approval. “Rates for services” means rate bases and premiums regarding compulsory insurance. 4 The Act establishes a universal bodily injury compensation plan, referred to as the Personal Injury Protection Plan, or PIPP.

Manitoba residents who suffer bodily injury in an automobile accident anywhere in North America, and non-residents of Manitoba who suffer such injury in Manitoba, are entitled to PIPP benefits. 5 The Automobile Insurance Certificates and Rates Regulation (the Regulation), Man. Reg. 24/2010, replaced by Man. Reg. 16/2011 , establishes premiums for Basic insurance (including PIPP) and for non-Basic insurance. The Regulation also permits MPI to exempt certain classes of drivers from the requirements of the Regulation.

Owners of certain inter-provincial or international trucks have been exempted from paying premiums for Basic coverage, and as a consequence they do not contribute by way of premiums to the costs of PIPP. Nevertheless, the drivers of those trucks are eligible for PIPP benefits. According to MPI, the ten-year average “trended loss costs” for claims by such drivers is just under $2 million per year. Those costs have been allocated by MPI to the Basic line of business. 6 This situation has existed for some time and the Board has commented on it from time to time.

For example, in Order 156/06, made November 20, 2006, the Board said:

Basic “loses” money every year through the subsidy to inter-provincial trucking (PIPP claims for inter-provincial truckers are covered by Basic with no attendant premiums collected), while SRE produces net income from the same base of policyholders, income that is not shared with Basic. . . . . . MPI reports it has been incurring PIPP costs averaging $1.8 million per year with respect to inter-provincial truckers injured in accidents and filing claims, even though their vehicles are not assessed premiums that include a component for PIPP costs.

With the now higher PIPP retention under MPI’s reinsurance agreements, the risk of even greater costs and subsidy is present. MPI confirmed that the current approach subsidizes trucking firms at the cost of other vehicle owners, and has indicated the subsidy will continue. The Board is aware that though the subsidization may appear inequitable to other policyholders, alternatives may have problems as well. PIPP provides benefits to Manitoba motorists wherever they are driving in North America.

Thus, if an inter-provincial Manitoba-based trucker is injured in either Manitoba or another province while driving a truck licensed in another jurisdiction, PIPP benefits may still be extended to the trucker. In such a case, the subsidization would still occur and the licensing of the truck and the fees associated therewith would be paid to another jurisdiction. In short, the problem is complex.

The new understanding arising out of the recent hearing is that SRE profits related to inter-provincial trucking may exceed the subsidy arising out of the Basic program; accordingly, the Board recommends that SRE transfer sufficient net income to Basic to cover the annual subsidy. 7 In Order 156/06, therefore, the Board noted what appeared to be a subsidy of the competitive line of business by the compulsory line, and recommended steps to end the subsidy. Similar commentary is found in other orders of the Board. 8 As well, in Order 150/08, made December 2, 2008, the Board observed: ….

The current situation is “costing” Basic policyholders, with costs incurred for truckers for which no premiums having been assessed being in essence subsidized by other motorists, despite continuing profit projections for SRE – a “fix” appears to require legislation. 9 This suggestion, that a legislated solution appeared necessary to resolve the subsidy situation, was repeated by the Board in Order 161/09, made December 4, 2009: Until (and if) a legislative amendment eliminates the right of an inter-provincial trucker to claim on MPI for a workplace motor vehicle accident, sufficient net income (to cover the annual subsidy provided by Basic to inter-provincial truckers) should be transferred to Basic out of the net income attributable to the inter-provincial trucking policyholder segment of SRE.

Basic policyholders should not be providing subsidies to the inter-provincial trucking industry; that is a provincial responsibility, if it is deemed necessary by Government. 10 In the first of the three Orders at issue, Order 122/10, made December 8, 2010, the Board said: … [T]he Board is no longer prepared to allow the cost of providing PIPP benefits to extra-provincial long-haul truckers and bus drivers to be allocated to Basic; as such, the annual cost from 2011/12 and on must be allocated by the Corporation to the non-Basic line of business.

As indicated above, the Board directs the Corporation to allocate PIPP costs associated with claims by inter-provincial truckers to non- Basic lines of business. MPI should also identify the annual operating and claims expense costs associated with these claims, for review at the next GRA. In the view of the Board, MPI’s current practice is neither fair nor reasonable nor actuarially sound, as the costs presently borne by Basic are not related to passenger vehicles or insurance per se . Rather, an economic development or trade measure has been taken by

Government. As such, while, preferably, government would absorb these costs, an allocation to non-insurance services would at least improve the actuarial soundness of MPI’s rate setting model. 11 The formal portion of that Order stated that: MPI shall allocate PIPP costs associated with claims by inter-provincial truckers to a non-Basic line of business; …. 12 The second of the three Orders, Order 145/10, was made December 31, 2010.

The Board elaborated on its previous explanation: The Board ordered (in the First Order of December 2010) that MPI shall allocate PIPP costs associated with claims by inter-provincial truckers to a non-Basic line of business. The Board stated that the current practice is neither fair, reasonable, nor actuarially sound, as the costs presently borne by Basic are not related to passenger vehicles or insurance, but rather represent an economic development policy adopted by Government.

In addition, MPI’s current practice does not provide for a matching of expenditures to the premium base to which those expenditures relate, and as such the practice is not actuarially sound. The current arrangement was put in place in 1988, supported by legislation and regulation, and it has meant that despite the commonly- held view that Basic is a universal and mandatory program of motor vehicle insurance, operated by a monopoly (MPI), it is not. The fact is that extra-provincial commercial and P.S.V. [public service vehicles] trucks and buses are not required to be insured through the Basic program.

Yet, such vehicles may and often do “plate” their vehicles in Manitoba, and inter-provincial drivers, regardless of where the vehicle they operate is “plated” are eligible for PIPP benefits (if injured in a motor vehicle accident in North America), as are third parties injured in an accident when the Manitoba driver is at-fault.

In addition to the loss of premium revenue to MPI as a result of this arrangement, the PIPP claims costs (inter-provincial truckers have the option of claiming either MPI-PIPP benefits or WCB benefits), leaving aside the operating costs associated with the arrangement and the accumulated interest on the series of annual deficiencies, have been approximately $2 million a year (at least since 1994 when PIPP was enacted), and these costs have been recovered from other motorists, resulting in the subsidy of these vehicles by other motorists. . . . . .

The Board is of the opinion that this ongoing subsidy is in place to meet a policy-driven perspective of Government (one related to economic development), not from an insurance perspective, and that, it believes there is a strong argument that the “just and reasonable” rate principle has been and is breached by this ongoing subsidy, which, if it is to be carried on, would best be met by the Province, not by MPI’s policyholders.

There may be a reasonable “public policy” rationale for this situation, but it is not related solely to insurance, and the costs of it carrying on should not be met by vehicle owners not involved in interprovincial trucking. Accordingly, the “cost” should be allocated to non- insurance lines and recovered from the Province. 13 MPI applied for a review and variation of the first Order, and on March 31, 2011, in the third Order (Order 44/11), the Board declined to change its decision.

The Board said: Basic rates are supposed to be set at a level that generates enough income to offset Basic’s costs, or to enable Basic to operate at a financial break-even level over the long term. Basic’s costs are largely driven by the benefits it pays out and, as such, higher Basic costs will and do lead to higher Basic rates. 14 The Board dealt with the objection that it lacked the jurisdiction to do what it had done:

The Board has jurisdiction to review and approve Basic rates pursuant to The Crown Corporations Public Review and Accountability Act , C.C.S.M. c. C336 (Crown Corporations Act) and in particular s. 26 thereof, which provides, in part: 26(1) Notwithstanding any other Act or law, rates for services provided by Manitoba Hydro and the Manitoba Public Insurance Corporation shall be reviewed by The Public Utilities Board under The Public Utilities Board Act and no change in rates for services shall be made and no new rates for services shall be introduced without the approval of The Public Utilities Board. 26(2) For the purposes of this Part, “rates for services” means (

c) in the case of the Manitoba Public Insurance Corporation, rate bases and premiums charged with respect to compulsory driver and vehicle insurance provided by that corporation. The mandate of the Board is to set just and reasonable rates (also characterized as fair and reasonable rates) for Basic policyholders. To determine whether proposed rates are just and reasonable, the Board requires a broad view of MPI’s operations and a perspective on the prudency of its operations.

Pursuant to the Crown Corporations Act, when the Board reviews Basic rates, it may have regard to the factors that are set out in ss. 26(4) and (5) of that Act , which factors include: 26(4)(a)(viii) any compelling policy considerations that the board considers relevant to the matter … So, the Board can consider the policy associated with the allocation of interprovincial trucking costs, but only to the extent that certain cost allocations, if made, would produce unjust or unfair and unreasonable Basic rates.

Because of the connection between Basic costs and Basic rates discussed above, the Board has jurisdiction to deny those cost allocations. This includes the allocation of the cost of PIPP benefits paid to interprovincial truckers to Basic, if the same are properly characterized as an allocation that is unfair or unjust to other Basic ratepayers. 15 The Board continued: In addition, the power of the Board to allow or disallow costs to Basic is necessarily incidental to its Basic rate review function.

If the Board has the power to approve (or deny) Basic rates, which power it clearly has, then it must also have the power to approve (or deny) the practices that ultimately shape those rates. . . . . . Moreover, the Board must set Basic rates that are actuarially sound and statistically driven and, as such, the Board has jurisdiction to disallow cost allocations to Basic that are not actuarially sound (again, because of the connection between Basic’s costs and its rates).

As the Board stated in Order 122/10, MPI’s current practice is neither fair nor reasonable nor actuarially sound, as the costs presently borne by Basic are not related to passenger vehicles or insurance per se . Rather, an economic development or trade measure has been taken by government.

As such, while, preferably, government would absorb these costs, an allocation to non-insurance services would at least improve the actuarial soundness of MPI’s rate setting model. 16 MPI had argued before the Board that inter-provincial truckers were entitled to PIPP benefits and that “these benefits must be allocated to Basic” (original emphasis). The Board said that there was “no specific authority” for that proposition. THE TEST FOR GRANTING LEAVE 17 Under The Public Utilities Board Act , C.C.S.M., c. P280, an appeal may be taken from a decision of the Board, with leave:

Grounds of appeal 58(1) An appeal lies from any final order or decision of the board to The Court of Appeal upon (

a) any question involving the jurisdiction of the board; or (

b) any point of law; or (

c) any facts expressly found by the board relating to a matter before the board. 18 My colleague Michel Monnin J.A. said in Consumers’ Association of Canada (Manitoba) Inc. et al. v. Manitoba Hydro,2005 MBCA 55, 195 Man.R. (2d) 12 (at paras. 9-10): In 1379025 Ontario Ltd. v. Winnipeg City Assessor, [2005] Man.R. (2d) Uned. 21; 2005 MBCA 46 , [2005] M.J.

No. 99;2005 MBCA 46, a recent chambers decision from this court dealing with an application for leave to appeal from a decision of theMunicipal Board of Manitoba, Freedman, J.A., summarized the test to be applied on a leave application (at para. 2): For leave to be granted, the applicant must raise a question of law or jurisdiction. If there does exist a genuine question of law, it must beone of some importance, meriting the attention of the court. Leave will not be granted on mixed questions of fact and law. Themethodology used by the Board to determine assessed value is a question of fact.

See, among many cases establishing or affirming theseprinciples, Manitoba (Provincial Municipal Assessor) v. Ducks Unlimited Canada, [1998] M.J. No. 547 (C.A.), West-Man Culvert& Metal Co. v. Provincial Municipal Assessor (Man.) (1992), (MB CA), 81 Man.R. (2d) 112 (C.A.), and NorwoodHotel Co. v. Winnipeg (City) Assessor, [1999] M.J. No. 96 (C.A.). See also Briarwood Investment Corp. v. Winnipeg CityAssessor (2004), 2004 MBCA 103 , 187 Man.R. (2d) 316; 2004 MBCA 103 ....

The provisions for an appeal from a decision of the Municipal Board are somewhat different than the appeal provisions under the Act[The Public Utilities Board Act], but what Freedman, J.A., stated in the above-noted case remains applicable to this one especially so asin this case where the application for leave is brought pursuant to s. 58(1)(

a) or (

b) of the Act. 19 See also Cash Store Financial Services Inc., Re, 2009 MBCA 1 at para. 25, 236 Man.R. (2d) 29. 20 The granting or denying of leave is a discretionary decision, and as many cases have indicated, leave should not be grantedunless the issue is of some importance and the applicant has a reasonable prospect of success. SUBMISSIONS ON THE LEAVE APPLICATION MPI 21 MPI argued that by virtue of the Act and the Regulation, it has the power to impose premiums for the PIPP and also toexempt the inter-provincial truck drivers from paying those premiums.

That exemption is part of a complex legislative response to theunique circumstances of inter-provincial truckers and vehicle owners. Resident Manitoba truckers pay driver licensing fees and receivePIPP benefits, but do not receive other benefits under the Basic scheme. 22 MPI argued that the Board’s jurisdiction was expressly limited to reviewing and approving changes to rates for the Basicline. The Board is required to ensure that proposed rates are sufficient to satisfy the costs of Basic.

It cannot, however, “rewrite theboundaries of the Basic insurance program, and PIPP in particular.” It cannot exercise powers over non-Basic lines of business, as it haspurported to do.

Nor does the Board have the authority to determine if policy decisions relating to the funding of Basic costs arereasonable, since that is the prerogative of the Government and MPI. 23 MPI also said that statutory benefits, such as PIPP payments, “must be funded through the Basic rates.” The Board has noauthority, said MPI, to select which PIPP claims costs should be excluded from Basic rates, or to exercise any control over non-Basiclines.

The effect of the Orders is to prevent the PIPP claims costs for these truckers from being funded by Basic premiums, contrary tothe express decision of the Government of Manitoba. 24 That express decision, said MPI, can be found in the Regulation, which permits the exemption from premium payment (sees. 119(1) and

Schedule E and tables thereto).

25 MPI argued that the Board has no authority to override a government decision to exempt insureds from certain premiumsand no authority to order MPI to allocate Basic costs to other insurance programs. 26 These are important questions of law or jurisdiction, in MPI’s submission. THE BOARD 27 The Board said that the issues raised by MPI were only questions of jurisdiction, and were not questions of law. Nothing inthe Orders derogates from the payment of PIPP benefits to any person or interferes with the exemptions from Basic premiums in favourof certain truckers.

Under the Crown Corporations Act, the Board is empowered to review “rates for services” of MPI, and s. 26 of thatstatute confers jurisdiction to review Basic rates. 28 In considering Basic rates, the Board must take into account all matters which reasonably have an impact on such rates. That would extend to costs which are inappropriately charged to the Basic system. As well, the Board has an obligation to considermatters which relate to the fiscal health of MPI (see Consumers’ Association of Canada at paras. 63-65).

The Board may take intoaccount “compelling policy considerations” that it considers relevant (s. 26(4) of the Crown Corporations Act). 29 Thus the Board has wide discretion, conferred on it by statute, to consider factors it reasonably considers relevant, and hasthe power to employ its own methodology, in reviewing MPI rates. 30 The Board thus has jurisdiction, in reviewing rates, to disallow cost allocations to Basic that are proposed by MPI, ifpermitting such allocations would be, in the Board’s view, unfair to Basic ratepayers.

The Board determined that the allocation to Basicof the cost of PIPP benefits to the inter-provincial truckers affects Basic rates. It was reasonable in its determination, and the Board hasthe jurisdiction “to deny cost allocations to Basic that result in unfair rates being imposed upon Basic ratepayers.” 31 As well, the Board said that MPI was incorrect in its assertion that the Act provides that Basic must bear the costs of allPIPP benefits. In fact, said the Board, the Act does not provide anything to that effect, and MPI was misreading the Act and theRegulation.

DECISION Extension of Time 32 The last of the three Orders was made on March 31, 2011, and any notice of motion seeking leave to appeal should havebeen filed by May 2, 2011. MPI was 29 days late in filing. Accordingly, it seeks an order extending the time for filing. 33 The Court of Appeal Rules provide, among other matters, that a judge may extend the time for taking any proceeding (seeRule 42). As well, The Public Utilities Board Act contains the following: Leave to appeal 58(2) The appeal shall be taken only (

a) by leave to appeal obtained from a judge of The Court of Appeal; (

b) within one month after the making of the order or decision sought to be appealed from, or within such further time as the judge underspecial circumstances shall allow; and (

c) after notice to the other parties stating the grounds of appeal. 34 Extensions of time are often the subject of motions before a chambers judge, and there have been many decisions settingforth the applicable principles. One recent decision is that of my colleague Steel J.A. in A.S.C. v. S.C., 2011 MBCA 70, 268 Man.R. (2d)282 where she said (at paras. 4-5): The law governing the extension of time to perfect an appeal or serve a notice of appeal is the same as the law applicable to seeking anextension of time to file an appeal. See Branum v.

Branum (1998), (MB CA), 129 Man.R. (2d) 142; 180 W.A.C.142 (C.A.), at para. 9, Twaddle, J.A., (in Chambers). The criteria are well known. Applicants must demonstrate that:

1) there was a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2) there is a reasonable explanation for the delay; 3) there are arguable grounds of appeal; and 4) any prejudice suffered by the other party can be addressed. See Zalizniak v. Zalizniak (2006), 2006 MBCA 161 , 212 Man.R. (2d) 114; 389 W.A.C. 114; 2006 MBCA 161 (in Chambers),and Bohemier et al. v. CIBC Mortgages Inc. (2001), 2001 MBCA 161 , 160 Man.R. (2d) 39; 262 W.A.C. 39; 2001 MBCA161.

Even if not all the criteria are satisfied, the court may still grant the extension if it is right and just in all of the circumstances. SeeHunter v. Hunter (2000), 2000 MBCA 134 , 150 Man.R. (2d) 291; 230 W.A.C. 291; 2000 MBCA 134 (in Chambers). 35 In this case, one must also bear in mind the statutory requirement that “special circumstances” must be present for anextension of time to be granted. 36 I will discuss the third criterion set out in A.S.C., whether there are arguable grounds of appeal, when dealing with the leaveapplication proper; my conclusion is that such grounds exist.

As to the fourth criterion, the Board did not assert any prejudice, nor can Isee any. I turn to a consideration of the first two criteria. 37 MPI filed two affidavits of Marilyn J. McLaren, its President and Chief Executive Officer. She was not cross-examined onthem. From her evidence the following is established: 1. Commencing in early April (i.e., within the time for filing a leave application), MPI’s internal legal counsel “began to consider andprepare an application for leave to appeal the Orders.” 2.

Corporate approval is needed to seek leave to appeal an order of the Board, and Ms McLaren has to consult with the MPI Board ofDirectors to obtain such approval. The Board met on May 2, 2011 and on May 19, 2011. 3. Ms McLaren was out of the country until April 17, 2011. Immediately on her return her focus was on dealing with anunprecedented rebate that the Board had ordered MPI to make to its ratepayers, preparation for the next General Rate Application(GRA), as well as the usual matters involved in preparation of annual financial statements and MPI’s annual report.

Those three matters“consumed virtually all” her time and the time of MPI’s executive. 4. She was unable to consult with the management team and MPI’s Board of Directors until after the expiry of the 30-day appealperiod. About two weeks thereafter, MPI retained outside counsel to launch the appeal process, which was done very soon after. 5. The Orders have an impact on both the compulsory and the non-compulsory lines of business.

They “constitute a significant shift”in the Board’s approach to reviewing and approving rate changes, and are thus unprecedented in that the Board has not, in the more than20 years prior to the first Order, disallowed costs incurred by the compulsory line. 38 The Board filed two affidavits of Hollis Singh, its Secretary, which also were not challenged by cross-examination. Fromhis evidence the following is established: 1. The Board had no knowledge, prior to the June 1, 2011 filings by MPI of its notice of motion and related materials, of any intentionto appeal. 2.

Preparation of MPI’s annual financial statements and report are required on an annual basis. As well, there is “no significantdifference” in the volume of filings for the next GRA from the volume in previous years. 3. The rebate ordered by the Board, while large, was not the first rebate that had been ordered by the Board to be made by MPI. 39 Based on the evidence, I am satisfied that MPI had the necessary continuous intention to appeal the Orders.

Obviously itsattention was diverted briefly by other matters, but not to the extent that would justify a conclusion that it had abandoned its intention toappeal the Orders. 40 Certainly MPI could have taken steps within the 30-day period to alert the Board to its intention to appeal, given that itsinternal legal counsel was working on the appeal, and given that such counsel must be presumed to have been familiar with the deadlinefor filing. It could have sought the Board’s consent to a late filing, which, if obtained, would have obviated the necessity for a contestedextension application.

I must add that it seems somewhat rigid from a management perspective that an application for leave to appeal aBoard decision cannot be filed by MPI without the approval of its Board of Directors, but there may be good reasons for that

requirement, and, in any case, that is the uncontested evidence. 41 Is MPI’s explanation for the delay reasonable? The test on an application to extend time (see para. 34 above) applies tocorporate as well as to individual applicants. It may be more difficult, however, for a corporate applicant, especially one that is large andsophisticated, to meet the “reasonable explanation for the delay” part of the test than for an individual applicant.

Not only could thereasons for delay be expected to be quite different in the case of an individual than of a corporation, but a corporate applicant could wellhave personnel and systemic resources enabling it to monitor time limits and deadlines that are unavailable to an individual applicant. See, e.g., Perren v. Lalari, 2009 BCCA 564, 280 B.C.A.C. 197, Kildonan Ventures Ltd. v. MacKenzie, 2006 MBCA 52 at para. 17, 205Man.R. (2d) 114, and Dagneault v.

Hatton et al. (1994), (BC CA), 50 B.C.A.C. 141 at para. 11. 42 Bearing those comments in mind, I have concluded that the explanation offered by MPI is a reasonable one. The matter ofthe leave application was not forgotten; rather, it appears to have been temporarily displaced by other, more important matters. In thepresent case, the delay in filing was not great and there was no prejudice to the Board occasioned by it.

Taking the entire circumstancesoutlined in detail in Ms McLaren’s two affidavits, they constitute, in my view, sufficiently “special circumstances” to satisfy therequirement in s. 58(2). 43 Accordingly, I grant MPI’s application to extend the time for filing its leave application. Application for Leave to Appeal 44 The questions MPI has presented, namely, whether the Board erred in jurisdiction or in law in ordering as it did, clearly fallwithin the requirements of s. 58(1)(

a) and (

b) of The Public Utilities Board Act. 45 Does MPI have a reasonable prospect of success, and of satisfying a panel of this court that such an error did occur? If so, isthe matter of sufficient importance to warrant the court’s attention? 46 I will deal first with the issue of sufficient importance. 47 Whether the Act and the Regulation mean what MPI says they mean, that is, that the Basic line must bear the cost of allPIPP benefits, including payments to those who do not contribute to PIPP, is a question going to the heart of the present dispute.

Whetherthe Board can make the Orders, requiring MPI to allocate costs to non-Basic lines, is a question that should be answered by this court. 48 I have no doubt that the question of whether the Board has the power and authority, i.e., whether it has the jurisdiction, toorder MPI to allocate the costs in question to a non-Basic line of business is a matter of considerable importance, not just to MPI as acorporate entity, but also to the hundreds of thousands of Manitobans who are required by law to obtain their Basic automobile insurancefrom MPI.

It seems to me to be a matter of significance, both to MPI and to the Board, to know as certainly as possible where theboundaries of the Board’s jurisdiction in this area fall. So it is clear to me that the matter warrants the attention of the court. 49 On the first issue, whether MPI has a reasonable prospect of success, I have concluded that it does.

I should be circumspectin these reasons in not expressing more than is required, since the matter will be coming before the court, and it will be for the panel toassess the merits of the parties’ positions, without unnecessary observations by me. 50 But it is necessary that I give the essence of the reasoning behind my decision to grant leave.

It is certainly arguable thatthe combination of the Act and the Regulation express a governmental policy bias in favour of vesting MPI with the power to extractpremiums from some persons, but not others, yet at the same time give MPI the power to extend benefits to that latter class of persons. Indeed, the Board’s comments (see paras. 8 and 9 above) tend to support that

interpretation. Moreover, those comments suggest that anychange in that situation would appear to require legislation. That could mean that the Board is not entitled to review and alter anydecision by MPI that was consistent with such policy. 51 MPI argued that the Board has no jurisdiction to make any order relating to MPI’s non-Basic line of business. The Boarddid not in express terms assert such jurisdiction, although it argued that it could deny cost allocations resulting in rates that were unfair toBasic ratepayers. See also the Board’s comments on jurisdiction at para. 15 above.

Arguably, by the Orders, the Board has gonebeyond reviewing and approving (or disapproving) Basic rates and costs, and has made an order essentially affecting a non-Basic line ofbusiness, over which it appears to have no jurisdiction. 52 The degree of deference owed by the court to the Orders in question will be a matter for the panel to determine. CONCLUSION 53 I extend the time for MPI to file and serve its leave application to the dates on which it was actually filed and served. I grantleave to MPI to appeal on the following questions, as proposed by MPI: (

a) whether the Board exceeded its authority under

section 26 of the Crown Corporations Public Review and Accountability Act, CCSM,c C336, in ordering MPI to allocate Personal Injury Protection Plan costs associated with interprovincial and international trucking toMPI’s non-Basic lines of business; and (

b) whether the Board erred in law, given the combined effect of

section 26 of the Crown Corporations Public Review and

Accountability Act , CCSM, c C336, and sections 33(1) (c), 74(1) , 75(1) and 202 (

u) of The Manitoba Public Insurance Corporation Act , CCSM, c P215, in ordering MPI to allocate Personal Injury Protection Plan costs associated with interprovincial and international trucking to MPI’s non-Basic lines of business? J.A.