Harder v. Manitoba Public Insurance Date:, 2012 MBCA 101

Citation: Harder v. Manitoba Public Insurance Date: 20121025 Corp. et al., 2012 MBCA 101 Docket: AI 11-30-07701 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier BETWEEN : ) M. D. Jodoin ERDMAN HARDER ) for the Appellant ) (Appellant) Appellant ) C. K. Lau ) for the Respondent - and - ) Manitoba Public Insurance ) Corporation MANITOBA PUBLIC INSURANCE ) CORPORATION ) D. G.

Guénette ) for the Respondent (Respondent) Respondent ) Automobile Injury ) Compensation Appeal - and - ) Commission ) AUTOMOBILE INJURY COMPENSATION ) Appeal heard: APPEAL COMMISSION ) September 10, 2012 ) Respondent ) Judgment delivered: ) October 25, 2012 CHARTIER J.A. Introduction and Issue 1 The appellant suffered neck and back pains following a motor vehicle accident in Manitoba. Dissatisfied with the treatment he received in this province, the appellant informed his Manitoba Public Insurance Corporation (MPIC) case manager that he would be undergoing back surgery in Germany.

MPIC advised him that it would not cover those costs. Despite this, the appellant had the surgery, which turned out to be successful. The appellant subsequently requested reimbursement for these out-of-province medical expenses from Manitoba Health. It denied his claim. He then applied for reimbursement under

Part 2 of The Manitoba Public Insurance Corporation Act , C.C.S.M., c. P215 (the Act ). This request was denied by MPIC. The appellant appealed to the Automobile Injury Compensation Appeal Commission (the Commission). It dismissed the appeal. 2 The appellant then sought leave to appeal the Commission’s decision from a judge of this court (the chambers judge) on the following two questions:

a) The Commission erred in law in its

interpretation of s. 136(1) of the Act and s. 5 of the Reimbursement of Expenses (Universal Bodily Injury Compensation) Regulation , Man. Reg. 40/94 (the Regulation ). In particular, the Commission erred in its determination that a literal

interpretation of the Act and the Regulation did not apply.

b) The Commission erred in arbitrarily making a determination that the provision of services outside of Manitoba lacks the necessary controls and oversights to ensure financially responsible management of bodily injury claims and thereafter further erred in relying upon that determination in denying the appellant’s appeal. 3 The chambers judge denied leave on both grounds. See Harder v. Manitoba Public Insurance Corp. et al ., 2012 MBCA 20 , 275 Man.R. (2d) 298 (at para. 36 ):

Thus, the Commission properly considered the purpose of the Act and the Regulation , as they fit within the province’s health care system. As a consequence, its conclusion on the intention and the true meaning of s. 136 and s. 5 would, in my view, likely be deferred to by a panel of this court. Its conclusion that it is [ The Health Services Insurance Act , C.C.S.M., c. H35] and not the Act that provides health care benefits for Manitobans would likely be found to be reasonable, although obviously the Act does provide certain health care benefits to victims of automobile accidents.

On that basis, and apart from his argument based on s. 6 of the Regulation , the [appellant] would have little prospect of success since his case depends on a literal, and not a purposive,

interpretation. 4 The chambers judge did however grant leave on an issue that was raised by the appellant for the first time at the leave application, namely, how s. 6 of the Regulation “may provide the means of ‘controls and oversight’ … which the Commission found, would be missing if the [appellant]’s claim was allowed” (at para. 38). The Commission did not refer to s. 6 in its reasons. 5

Section 136 of the Act and ss. 5 - 6 of the Regulation read as follows: Reimbursement of victim for various expenses 136(1) Subject to the regulations, the victim is entitled, to the extent that he or she is not entitled to reimbursement under The Health Services Insurance Act or any other Act , to the reimbursement of expenses incurred by the victim because of the accident for any of the following: (

a) medical and paramedical care, including transportation and lodging for the purpose of receiving the care; (

b) the purchase of prostheses or orthopedic devices; (

c) cleaning, repairing or replacing clothing that the victim was wearing at the time of the accident and that was damaged; (

d) such other expenses as may be prescribed by regulation. Reimbursement of expense paid by other person 136(2) A person who pays an expense referred to in subsection (1) on behalf of a victim is entitled to reimbursement of the expense. Medical or paramedical care 5 Subject to sections 6 to 9, the corporation shall pay an expense incurred by a victim, to the extent that the victim is not entitled to be reimbursed for the expense under The Health Services Insurance Act or any other Act , for the purpose of receiving medical or paramedical care in the following circumstances: (

a) when care is medically required and is dispensed in the province by a physician, nurse practitioner, clinical assistant, physician assistant, paramedic, dentist, optometrist, chiropractor, physiotherapist, registered psychologist or athletic therapist, or is prescribed by a physician, nurse practitioner, clinical assistant, or physician assistant; (

b) when care is medically required and dispensed outside the province by a person authorized by the law of the place in which the care is dispensed, if the cost of the care would be reimbursed under The Health Services Insurance Act if the care were dispensed in Manitoba. Maximum expense payable for out of province care 6 An expense payable under clause 5 (

b) is subject to a maximum of such amount as the corporation considers reasonable and proper for the care. 6 The chambers judge granted leave to appeal to the appellant on this issue stating (at para. 43):

Having regard to s. 6 , I would frame the question as: Did the Commission err in law in its

interpretation of the Act and the Regulation , to the extent that the Commission rejected the [appellant]’s appeal on the basis that, if his application for reimbursement was granted, MPIC lacked the necessary controls and oversight to ensure financially responsible management of bodily injury claims? The Standard of Review 7 The appellant argues that the applicable standard by which this court is to review the question is correctness. He points to S hier v.

Manitoba Public Insurance Corp. , 2007 MBCA 76 , 51 C.C.L.I. (4th) 169 , as authority. 8 MPIC and the Commission make the point that since Shier , the Supreme Court of Canada has refined the test for selecting the standard when reviewing an administrative tribunal’s

interpretation of its own legislation. They submit that the appellate court review should be conducted on a standard of reasonableness. I agree. 9 In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 at paras. 37-39 , 42, [2011] 3 S.C.R. 654, and in Rogers Communications Inc. et al. v.

Society of Composers, Authors and Music Publishers of Canada et al. , 2012 SCC 35 at para. 16 , 432 N.R. 1 , Rothstein J. clarified that, when reviewing an administrative tribunal’s decision interpreting or applying its home statute or closely related legislation, an appellate court will generally apply a reasonableness standard. Exceptions to this general rule include, but are not limited to, constitutional questions, questions of true jurisdiction and questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise.

Those exceptions are to be reviewed on a correctness standard . Moreover, the onus falls on the party seeking to invoke an exception to demonstrate that the correctness standard should apply (see Alberta Teachers’ at para. 39). 10 See also these recent Supreme Court of Canada decisions which establish that when an administrative tribunal interprets its own or closely related statutes, the applicable standard of review will be reasonableness: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 , Halifax (Regional Municipality) v.

Canada (Minister of Public Works and Government Services) , 2012 SCC 29 , 431 N.R. 10 , Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395 , Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 SCC 10 , [2012] 1 S.C.R. 364 , and Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 ; as well as from our court, Prairie Coach Charter Services Ltd. v. The Motor Transport Board , 2012 MBCA 95 at para. 12 . 11 The appellant has not persuaded me that this court should depart from the standard of reasonableness in this case.

Level of Deference Resulting from the New Issue on Appeal 12 As already mentioned, leave was granted on an issue not raised by the appellant when the matter was first before the Commission. As Steel J.A. wrote in Bates v. Welcher , 2001 MBCA 33 , 153 Man.R. (2d) 281 (at para. 32 ): “ Normally, courts will not entertain new issues on appeal except under exceptional circumstances.” See also Kaiman Estate v. Graham Estate , 2009 ONCA 77 at para. 18 , 245 O.A.C. 130 . The basis for this general rule is simple. Appellate courts review decisions to correct error.

If an issue is not raised in the first instance, it is difficult for an appellant to argue that the decision-maker committed an error on that issue. 13 Moreover, in administrative law, applying the reasonableness standard to an issue not raised before the tribunal poses unique challenges. The standard of reasonableness basically involves asking, “After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?” ( Law Society of New Brunswick v. Ryan , 2003 SCC 20 at para. 47 , [2003] 1 S.C.R. 247 ).

There has to be a “line of analysis within the … reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” ( Ryan at para. 55 , and see Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 47 , [2008] 1 S.C.R. 190 ). As can be seen from the above, there is a direct correlation between the standard of reasonableness and the reasons given by the administrative tribunal.

The inescapable reality in this case is that s ince the s. 6 argument was never raised before the Commission, there are no express reasons to review on that issue. 14 The question of the appropriate level of deference on a new issue on appeal in the administrative law context was recently considered by the Supreme Court of Canada in Alberta Teachers’ (at paras. 1, 53): .… This appeal provides an opportunity for this Court to address the question of how a court may give adequate deference to a tribunal when a party raises an issue before the court on judicial review, which was never raised before the tribunal and where, as a consequence, the tribunal provided no express reasons with respect to the disposition of that issue.

However, the direction that a reviewing court should give respectful attention to the reasons “which could be offered in support of a decision” is apposite when the decision concerns an issue that was not raised before the decision maker . In such circumstances, it may well be that the administrative decision maker did not provide reasons because the issue was not raised and it was not viewed as contentious.

If there exists a reasonable basis upon which the decision maker could have decided as it did, the court must not interfere . [emphasis added] 15 As stated in Alberta Teachers’ , appellate intervention would be unjustified if there exists a reasonable basis upon which

the Commission could have decided as it did. Put another way, the Supreme Court of Canada directs that, since the standard of reasonableness cannot be applied to non-existent reasons, it is to be applied “to the reasons that could have been offered to support the decision-maker’s conclusion” ( Inter Pipeline Fund v. Alberta (Energy Resources Conservation Board) , 2012 ABCA 208 (QL) at para. 21 ). Analysis 16 The appellant, a Manitoba resident, submits that the

interpretation to be given to ss. 136 and 5, in light of s. 6, is that he is entitled to be reimbursed by MPIC for “reasonable” amounts if the out-of-province care was with respect to an “insured service.” The appellant contends that the principal reason the Commission denied his reimbursement request was because the scheme suggested by the appellant “would lack the necessary controls and oversight to ensure financially responsible management of bodily injury claims” (at para. 16). This, he says, clearly shows that the Commission failed to consider s. 6 for it is that

section which provides MPIC with the ability to limit out-of-province expenses to “reasonable and proper” amounts. 17 MPIC submits that the Commission’s remarks about “controls and oversight” were not the primary reason for dismissing the appeal. MPIC states that the appellant’s claim was rejected because his submission ignored the purpose and intent of the relevant legislation; namely, that Manitoba Health be the primary payer for insured medical expenses. It submits that responsibility is not transferred to MPIC simply because those expenses are brought about by a motor vehicle accident.

MPIC argues that, while the existing system recognizes that certain situations may arise where out-of-province expenses will be covered by MPIC, they will be the exception. These situations include coverage for emergencies, for non-Manitoba residents or for a specialized treatment not offered in the province.

MPIC says that to accept the appellant’s position would be to allow motor vehicle accident claimants to effectively bypass the provincial health care system (the principal payer) and saddle the costs on MPIC (the secondary payer). 18 I agree with MPIC. 19 The principal reason the Commission dismissed the appellant’s appeal was that it rejected his argument that ss. 136(1) and 5 be given a literal

interpretation. The Commission made clear that it is Manitoba Health which has the primary obligation to cover insured medical expenses, not MPIC. Moreover, it held that that obligation “is not displaced in the event of a bodily injury caused by a motor vehicle” (at para. 15). Leave was not granted to review these conclusions and it would be inappropriate to address them.

However, I will say that a fair reading of the Commission’s decision shows its statement (that the scheme suggested by the appellant “would lack the necessary controls and oversight to ensure financially responsible management of bodily injury claims”) was more in the nature of an obiter comment than part of the ratio of its decision. 20 I now turn to the s. 6 issue. My view is that it is ss. 136 and 5 which establish entitlement, not s. 6 .

Section 6 is only considered once entitlement is confirmed under s. 5 and only serves to establish a maximum ceiling amount which automobile injury victims would be able to claim should they then choose to proceed with the out-of-province expenses. 21 From its reasons, it is clear that the Commission had concluded that the appellant was “not entitled to reimbursement of expenses for his out-of-province medical care” (at para. 13). Since entitlement had been rejected, there would have been no reason for the Commission to have considered s. 6 .

And there lies, in my opinion, the reasonable basis upon which the Commission decided as it did. In the result, appellate intervention is unjustified. Conclusion 22 The appeal is dismissed with costs. J.A. I agree: J.A. I agree: J.A.