Harder v. Manitoba Public Date:, 2012 MBCA 20

Citation: Harder v. Manitoba Public Date: 20120314 Insurance Corp. et al., 2012 MBCA 20 Docket: AI 11-30-07701 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : ERDMAN HARDER ) M. D. Jodoin ) for the Applicant (Appellant) Applicant ) ) C. K. Lau - and - ) for the Respondent Manitoba ) Public Insurance Corporation MANITOBA PUBLIC INSURANCE ) CORPORATION ) D. G.

Guénette ) for the Respondent Automobile (Respondent) Respondent ) Injury Compensation Appeal ) Commission - and - ) ) Chambers motion heard: AUTOMOBILE INJURY ) February 9, 2012 COMPENSATION APPEAL ) COMMISSION ) Decision pronounced: ) March 14, 2012 Respondent ) FREEDMAN J.A. OVERVIEW 1 The applicant was injured in an automobile accident in Manitoba in October 2005. He suffered injuries, including neck and back pain, which over time became debilitating, and he was unable to work.

He was treated by a number of specialists in Manitoba without success. 2 He became aware of a surgical procedure available in Germany and advised the respondent Manitoba Public Insurance Corporation (MPIC) that he would be travelling there for the treatment. He did so, and says that he has made a “remarkable recovery.” He has been back to work full time for two and one-half years. 3 The applicant sought reimbursement for his medical and related expenses from Manitoba Health. The procedure he had is an “insured service” in Manitoba within the meaning of The Health Services Insurance Act , C.C.S.M., c.

H35 (the HSIA ). A form of this surgery is performed in Manitoba. Manitoba Health denied his claim as he had failed to show that the service was not available in Manitoba, one of the requirements of Manitoba Health before it will reimburse out-of-province medical expenses. 4 He then requested reimbursement from MPIC, but his request was denied. The Internal Review Officer said: …. The surgery you attended for did not take place in the province of Manitoba and therefore, there are no provisions to cover the cost of the surgery or related expenses under the Personal Injury Protection Plan. . . . . .

The MPI legislation specifically stipulates that our coverage is secondary to that provided by Manitoba Health. This means that Manitoba Health is the first payer of insured services such as the surgery you may require. There are no provisions in the legislation to

cover the cost of surgery or related expenses under the Personal Injury Protection Plan. Accordingly, I am confirming the case manager’s decision of October 23, 2008. 5 The applicant appealed the MPIC decision to the respondent Automobile Injury Compensation Appeal Commission (the Commission), which denied the appeal. He now seeks leave to appeal the Commission’s decision to the Court of Appeal.

SUBMISSIONS TO THE COMMISSION 6 The applicant had argued before the Commission, and would argue before the Court of Appeal if leave is granted, that the provisions of The Manitoba Public Insurance Corporation Act , C.C.S.M., c. P215 (the Act ) clearly create an entitlement to reimbursement.

He referred to s. 136(1) found under Division 5 titled “Reimbursement of Expenses”: 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; . . . . . [emphasis added] 7 He referred also to s. 5 of Man. Reg. 40/94 titled “Reimbursement of Expenses (Universal Bodily Injury Compensation) Regulation” (the Regulation ): 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. [emphasis added] 8 The applicant had argued that the literal meaning of the provisions in question entitled him to reimbursement, if Manitoba Health would not reimburse him, so long as the service he received was an “insured service,” which it was. He said that s. 5(

b) of the Regulation created an entitlement regardless of the reason Manitoba Health would not pay, and that a claimant is not required to seek care in Manitoba, but can choose to obtain care elsewhere, and still be entitled to reimbursement. 9 MPIC had argued that Manitoba Health is the first payer of the cost of insured services and any coverage under the Act was secondary. The service the applicant received in Germany was an insured service, and would have been paid by Manitoba Health had it been provided to the applicant in Manitoba. Thus, he would not have incurred any expense. MPIC’s responsibility as second

payer is limited, it said, to costs over and above what Manitoba Health would have paid had it accepted the applicant ’ s claim. THE COMMISSION’S DECISION 10 The Commission’s decision reviewed the facts, the applicant’s extensive medical history and the submissions of counsel as outlined above. It quoted what it said was the relevant legislation, namely s. 136(1)(

a) of the Act and s. 5(

b) of the Regulation . 11 The reasons for the Commission’s rejection of the appeal may be summarized as follows: 1. The applicant’s “literal

interpretation” (at para. 14) ignores the purpose and intent of the Act and the HSIA , since the Legislature clearly intended a correlation between the two statutes. In so deciding, the Commission considered “the entire context of

Section 5(b)” ( ibid. ) of the Regulation and the Act . It said that the HSIA has as its purpose the provision of health care services to Manitobans, and that is not the purpose of the Act . The HSIA and the Canada Health Act , it found, provide an exclusive scheme for the provision of insured benefits, which are primary benefits. 2. MPIC is an auto insurer which administers the Personal Injury Protection Plan (PIPP) under the Act “and extends coverage for expenses [of Manitobans injured in a motor vehicle collision] which are not covered by any government health care program” (at para. 15).

Manitoba Health is the primary payer for insured medical services “and that obligation does not transfer to MPIC when the injuries are caused by a motor vehicle accident” (at para. 17). 3. To accept the applicant’s position would be incompatible with MPIC’s objective of ensuring that “insurance premiums remain stable, predictable and affordable” (at para. 16). The applicant’s position was unreasonable.

If Manitobans injured in an accident could “choose to obtain medical care anywhere” ( ibid. ) at MPIC’s cost, the result “would lack the necessary controls and oversight to ensure financially responsible management of bodily injury claims” ( ibid. ). It would create a two-tiered medical system. The Commission preferred a purposive analysis as outlined above. APPLICATION FOR LEAVE 12 Under s. 187 of the Act , the applicant may appeal the Commission’s decision, with leave, on a question of law or jurisdiction. No question of jurisdiction is raised.

The traditional criteria for granting leave to appeal have been stated in many cases. See, e.g., Pelchat v. Manitoba Public Insurance Corp. and Automobile Insurance Compensation Appeal Commission , 2006 MBCA 90 at para. 2 . They were recently reaffirmed by Scott C.J.M. in Winnipeg Airports Authority Inc. v. EllisDon Corp. , 2011 MBCA 51 , 268 Man.R. (2d) 66 (in chambers) .

As a general rule, the following three criteria must be satisfied before leave to appeal will be granted: 1) leave to appeal may be granted only on a question of law or jurisdiction; 2) that question must be one of sufficient importance to warrant consideration by the province’s highest court; and 3) the case must have arguable merit; that is to say, the applicant must have a reasonable prospect of success. 13 The court may also consider the overarching concern for the interests of justice; specifically whether denial of leave could result in an injustice.

If the refusal to grant leave might result in an injustice, leave may be granted. See Carpenter Fishing Corp. v. Canada , 2002 BCCA 104 (QL) (in chambers) and 4784881 Manitoba Ltd. v. Khidir , 2008 MBCA 49 , 228 Man.R. (2d) 81 (in chambers) . SUBMISSIONS 14 In addition to arguments on the merits of his case, similar to those he made before the Commission, the applicant argued before me that the Commission erred in rejecting the plain meaning, intent and wording of the Act and Regulation . Its decision was not only illogical, but undermined the intent of s. 5(

b) of the Regulation and disregarded s. 136 of the Act . 15 The Commission further erred in law, he said, in speculating that to allow the appeal would have serious consequences (i.e., because MPIC would lack the means of oversight and controls). There was no basis for this conclusion. 16 He argued that the purpose of the provisions was to provide coverage, but with limitations which were spelled out in the Act and Regulation . For example, services not insured in Manitoba, such as certain experimental services, would not be covered.

The provisions do not state that they are limited to emergency situations, which would have been included in the provisions had that been the intent. 17 One new point was now raised by the applicant. This had apparently not been argued before the Commission nor was it mentioned in the applicant’s motion brief on this application. He said that the Regulation contained a provision, not dealt with by the Commission in its decision, that conclusively answered the Commission’s concern about a lack of controls and oversight if his claim, or others like it, were to be accepted. That provision is s. 6:

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. 18 The applicant also raised issues about standard of review, which he said would be correctness. I will deal with this argument below. 19 MPIC conceded that the question whether the Commission erred in its

interpretation of s. 136(1) of the Act and s. 5 of the Regulation is a question of law, but said that the application failed to meet the other two criteria. 20 On the importance of the case, MPIC argued that it involved no more than a denial of reimbursement of foreign medical costs where the claimant “did not follow the necessary control and oversight processes designed to ensure responsible financial management of the health care system.” Thus, any decision would be of limited precedential value.

Moreover, the evidence is limited, so any decision of the court would not provide a useful guide for future cases; e.g., there is no evidence that the treatment was on an emergency basis. Having treatment outside Manitoba was clearly a matter of the applicant’s choice, it said. 21 As well, said MPIC, the evidence is that the applicant did not follow the Manitoba Health process for reimbursement, which requires that the insured service be unavailable in Manitoba or elsewhere in Canada and that prior approval for the out-of-province treatment be obtained.

There is no evidence whether the applicant appealed Manitoba Health’s decision under s. 10 of the HSIA . 22 MPIC said that the standard of review which this court would apply on an appeal would be reasonableness, and the Commission’s decision met that standard. The

interpretation of the legislation touches the heart of the bodily injury compensation scheme; that is, when and which benefits are paid by MPIC. The Commission’s decision would be entitled to considerable deference on an appeal. 23 MPIC argued that the applicant’s case had no reasonable prospect of success.

The Commission had correctly held that MPIC is a provincial auto insurer administering the PIPP and not a primarily obligated government health care program. 24 It noted the “flawed logic” the Commission found in the applicant’s position, that he could choose to obtain treatment anywhere and require MPIC to cover the costs of any services that were insured services in Manitoba. It relied on the Commission’s finding (see para. 11 above) that in such an arrangement there would not be the necessary controls and oversight.

It argued that: … [A]ny responsible insurer, particularly MPI (a Crown Corporation), would be expected to review the proposed expenses of victims of motor vehicle accidents before taking on the obligation to pay (or reimburse, as the case may be). If it were otherwise, MPI would be left in a position whereby victims of motor vehicle accidents could seek medical treatment in exclusive private American hospitals and simply pass multi-million-dollar invoices to MPI for reimbursement.

If the legislation were interpreted in the manner proposed by the appellant, MPI would be required to pay for the invoice - without complaint, and to the obvious detriment of its ratepayers. 25 MPIC said that s. 5(

b) of the Regulation was limited to compensation for injuries suffered in accidents occurring outside Manitoba. 26 The Commission filed a motion brief, essentially limited to commenting on the standard of review, which it said was reasonableness. DECISION 27 It is not disputed that the applicant has raised a question of law when he challenges the

interpretation of the Act and the Regulation . In my opinion, the issue raised by the applicant also satisfies the second part of the test for leave. It is a matter of importance for Manitobans who are injured in an automobile accident to know to what extent they may obtain reimbursement from MPIC for out-of-province medical expenses.

A Court of Appeal decision on this case, while based on the particular facts (as in all cases), would likely provide some guidance in that regard. 28 The real issue at this stage is whether the applicant has raised an arguable case of substance; i.e., one with a reasonable prospect of success. 29 One relevant factor is the standard by which a panel of this court would review the Commission’s decision.

See, e.g., Sterling O & G International Corp. (Re) , 2012 MBCA 18 (in chambers) (at para. 18 ): The standard of review this court would apply on appeal is a relevant consideration on a leave application, as it relates to the “reasonable prospect of success” criterion.

30 Recent dicta of the Supreme Court would suggest that a reasonableness standard would be applied. See Sterling O & G (atpara. 19): If this case was heard on appeal, the standard of reasonableness would very likely be applied by a panel of the court on questions of lawinvolving the

interpretation of [The Employment Standards Code, C.C.S.M., c. E110] by the Board …. See Alberta (Information andPrivacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, where, for the majority of the Supreme Court of Canada,Rothstein J. said (at para. 34): …. … [U]nless the situation is exceptional, and we have not seen such a situation since Dunsmuir [2008 SCC 9, [2008] 1 S.C.R. 190],the

interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particularfamiliarity” should be presumed to be a question of statutory

interpretation subject to deference on judicial review. 31 See also, Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras. 26-28, [2011] 1 S.C.R. 160. 32 On the other hand, and supporting the applicant’s position, see Shier v. Manitoba Public Insurance Corp. et al., 2008MBCA 97 at para. 41, 231 Man.R. (2d) 198, and Krzysik v.

Manitoba Public Insurance Corp., 2008 MBCA 29, 225 Man.R. (2d) 239,where the correctness standard was applied when the Commission was interpreting the Act. 33 The applicant argued that if reasonableness was the standard, there would be less deference rather than more deferenceshown by the court, because of the nature of the question (i.e., a question of law). This concept of a sliding scale of deference within thereasonableness standard was rejected by the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. AlbertaTeachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (at para. 47): ….

The majority reasons in Dunsmuir do not recognize variable degrees of deference within the reasonableness standard of review andwith respect neither do the reasons in Canada (Canadian Human Rights Commission) [2011 SCC 53, [2011] 3 S.C.R. 471]. Once it isdetermined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is tobe conducted. The judicial review is simply concerned with the question at issue. A review of a question of statutory

interpretation isdifferent from a review of the exercise of discretion. Each will be governed by the context. But there is no determination of the intensityof the review with some reviews closer to a correctness review and others not. 34 Apart from the impact, if any, that s. 6 of the Regulation would have on the Commission’s analysis, the first two bases ofthe Commission’s decision (summarized above in para. 11) are, in my respectful view, likely unassailable. Legislation is to beinterpreted purposively, and not literally, as the Commission said. The plain meaning of words is an inadequate tool to apply.

Anappropriate illustration is Gurvey v. Manitoba Public Insurance Corp. et al., 2010 MBCA 86, 258 Man.R. (2d) 139 (in chambers), wherethe applicant for leave was relying on an interpretive approach similar to the present applicant’s. In rejecting that approach, I said (atparas. 16-18): His argument depends on a literal and narrow construction of the regulation and, if adopted, would likely result in there being nodeduction at all for self-employed persons.

That is so because, as the Commission’s counsel correctly argued, what is payable under theCPP by self-employed persons is one amount, currently set at 9.9 per cent, and not the aggregate of two amounts each half thatpercentage. It cannot have been the legislature’s intention that there be no deduction at all in respect of self-employed persons, or only adeduction of half the amount they would otherwise have had to contribute. That result would, indeed, be an absurdity, and if at allpossible the legislation should be construed to avoid that result.

Legislation must be construed, according to the Supreme Court of Canada (see Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, (SCC), [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, at 41, and a great many subsequent cases adopting the principle approvedin Rizzo, such as R. v. Abdullah (G.) et al. (2010), 2010 MBCA 79 , 258 Man.R. (2d) 89; 499 W.A.C. 89; 2010 MBCA 79, atpara. 66) in accordance with “Driedger’s Modern Principle” (see Ruth Sullivan, Sullivan on the Construction of Statutes, 5th Ed.(Markham: LexisNexis Canada Inc., 2008) at 1 et seq.), namely, that “the words of

an Act are to be read in their entire context, in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Rizzo itself is a good illustration of why the applicant’s argument is very unlikely to succeed. Sullivan (at pp. 10-12) explains the caseand the decision in these terms, upon which I cannot improve: ... The issue in Rizzo was whether employees who lose their job because their employer has been put into bankruptcy are entitled totermination and severance pay under Ontario’s Employment Standards Act [R.S.O. 1980, c. 137].

The provisions establishing theseentitlements seemed to make termination by the employer a condition precedent: ….

The Court of Appeal relied on the plain meaning of the italicized words to conclude that the Employment Standards Act entitled employees to termination and severance pay only if their jobs were terminated by their employer rather than lost due to bankruptcy. The Supreme Court of Canada rejected this

interpretation. It declared that relying on what appears to be the plain meaning of a legislative text is an unacceptable approach because it is incomplete. …. Iacobucci, J., then turned to Driedger’s modern principle, which he characterized as best encapsulating the approach on which he preferred to rely. His approval of Driedger was based on the latter’s recognition “that statutory

interpretation cannot be founded on the wording of the legislation alone”. He also relied on s. 10 of the Ontario

Interpretation Act which directs that every Act receive the

interpretation that best ensures the attainment of its objects. He concluded with the following criticism of the Court of Appeal’s approach [at para. 22]: Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the [ Employment Standards Act ], its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized.

Iacobucci, J., analyzed the purpose of the Act as a whole and the particular provisions to be interpreted; he also considered the consequences that would flow from adopting the plain meaning, pointing out that “it is a well established principle of statutory

interpretation that the legislature does not intend to produce absurd consequences” [at para. 27] ... He concluded with the following appeal to reason and fairness [at para. 41]: In my view, the impetus behind the termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemployment.

As all dismissed employees are equally in need of the protections provided by the [ Employment Standards Act ], any distinction between employees whose termination resulted from bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. The Supreme Court of Canada’s approach in the Rizzo case is exactly what is contemplated by the modern principle.

Even though the language of ss. 40 and 40a of the Employment Standards Act did not seem to be ambiguous, even though it expressly made termination by the employer a condition precedent of entitlement to termination or severance pay, the court nonetheless looked at the entire context, including the purpose and scheme of the Act , relevant legal norms, and the consequences of adopting one

interpretation as opposed to another. It used these factors to “create” ambiguity and then in effect to justify its preferred understanding of the text. (Emphasis added) 35 The Act and Regulation are to be construed in a manner consistent with s. 6 of The

Interpretation Act , C.C.S.M., c. I80: Rule of liberal

interpretation 6 Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal

interpretation that best ensures the attainment of its objects. 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 HSIA 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 applicant would have little prospect of success since his case depends on a literal, and not a purposive,

interpretation. 37 But s. 6 of the Regulation was apparently not brought to the Commission’s attention, and was not specifically mentioned in its decision. MPIC did not, in its argument before me, offer any view on the significance of s. 6 in the overall scheme. Nor did it explain how s. 6 might impact its argument that, if victims of accidents could seek medical care outside the province, MPIC would be obliged to pay all invoices submitted, without complaint. 38

Section 6 provides, in effect, that reimbursement for an expense payable for out-of-province medical care (for an insured service) is subject to a maximum of such amount as MPIC considers reasonable and proper. This

section may provide the means of “controls and oversight” which MPIC said, and which the Commission found, would be missing if the applicant’s claim was allowed. Or it may not. 39 It is not clear whether the

section was taken into account by the Commission, although the Commission said it had considered the Regulation . For example, when it identified the “Relevant Legislation” (at paras. 4-5) it only quoted s. 136(1)(

a) of the

Act and s. 5(

b) of the Regulation. It did not include s. 6, from which one might conclude that it thought s. 6 to be irrelevant. Yet on itsface, s. 6 seems to provide some support for the applicant’s argument. If it had considered the discretion conferred on MPIC by s. 6, onemight have expected the Commission to make some reference to it, and explain why it did not provide the means for MPIC to exercisesatisfactory oversight and control. 40 The question then is how s. 6 fits into the entire scheme of payment for medical expenses and, in particular, into the regimecreated by the Act and the Regulation in respect of compensation for injuries suffered in automobile accidents.

Section 6 does not appearto have been substantively judicially considered. Some meaning must be given to s. 6, according to the principles of statutoryinterpretation. The Commission’s understanding of the meaning of this section, and of its place in the legislative scheme, would berelevant, and important. 41 My jurisdiction is limited to granting or denying leave. If leave is denied, the applicant may be deprived of somereimbursement when, in light of s. 6, arguably that should not happen.

If leave is granted, a panel of the court could dismiss or allow theappeal, but it also would have the power to remit the matter to the Commission for further consideration in light of s. 6, if it thought fit todo so. See s. 187(6)(

c) of the Act. That is a remedy not open to me on this leave application. 42 On balance, I conclude that the interests of justice require that leave be granted. It would be potentially unjust to dismissthis application in light of the uncertainty that exists as to the meaning and implications of s. 6 of the Regulation. See 4784881 ManitobaLtd. (at paras. 14-15): …. [In] R. v. Johnston (A.A.), [2005] A.R. Uned. 11; 2005 ABCA 58 (Chambers) … Russell, J.A., said: “Leave will be granted toremedy clear errors of law where to do otherwise would result in injustice” (at para. 2).

In reaching my decision on the present motion, the interests of justice must surely be considered. See Auto List of Canada Inc. v.Sumner (2004), 2004 MBCA 59 , 184 Man.R. (2d) 155; 318 W.A.C. 155; 2004 MBCA 59 (Chambers): “... [T]he unusual factsin this case require invoking ‘the overarching concern for the interests of justice …’” (at para. 15). See also Carpenter Fishing Corp.et al. v. Canada, [2002] B.C.A.C.

Uned. 47; 2002 BCCA 104 (Chambers): “[O]n an application for leave to appeal ... [t]he court mayalso consider whether denial of leave would result in an injustice” (at para. 4). 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 theRegulation, to the extent that the Commission rejected the applicant’s appeal on the basis that, if his application for reimbursement wasgranted, MPIC lacked the necessary controls and oversight to ensure financially responsible management of bodily injury claims? 44 I grant leave on that question, with costs to the applicant against MPIC. J.A.