Chartier v. Manitoba Public Insurance Date:, 2014 MBCA 113

Citation: Chartier v. Manitoba Public Insurance Date: 20141211 Corporation et al., 2014 MBCA 113 Docket: AI 98-30-04041 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard BETWEEN : JULES HONORÉ CHARTIER ) T. B. Kumka ) ) for the Manitoba Public Insurance Corporation (Appellant) Respondent ) ) J. H. Chartier - and - ) on his own behalf ) MANITOBA PUBLIC INSURANCE ) D. G.

Guénette CORPORATION ) for the Automobile ) Injury Compensation (Respondent) Applicant ) Appeal Commission ) - and - ) ) Chambers Motion heard: AUTOMOBILE INJURY COMPENSATION ) October 21, 2014 APPEAL COMMISSION ) ) Judgment Delivered: Respondent ) December 11, 2014 MONNIN J.A. [ 1 ] The respondent Manitoba Public Insurance Corporation (MPIC) brings a motion seeking to have the appellant’s (Chartier) application for leave to appeal from a decision of the respondent Automobile Injury Compensation Appeal Commission (AICAC) dismissed for delay. [ 2 ] Chartier was involved in a motor vehicle accident on September 24, 1994. [ 3 ] A dispute arose between Chartier and MPIC with respect to the extent of his injuries and compensation due to him.

The dispute, pursuant to the relevant legislation, was brought before the AICAC which heard the matter on November 6, 1998. It rendered its decision on December 2, 1998. [ 4 ] The AICAC stated as follows in denying Chartier’s claim: [Chartier] can only claim IRI from MPIC if he meets the condition of

Section 8 of 37/94 of the regulation of the MPIC Act [ C.C.S.M., c. P215 ] that he was rendered entirely or substantially unable to perform the essential duties of the employment that were performed by him at the time of the accident. We find, from the evidence before us, that Mr. Chartier neither lost his employment nor was rendered unable to perform the essential duties of that employment by reason of his accident. [ 5 ] On December 31, 1998, Chartier filed an application in this court seeking leave to appeal from the decision of the AICAC.

Such an application can only be granted if it raises a question of law or jurisdiction, if the question is one of sufficient importance to justify the attention of this court and, finally, if an applicant has an arguable case to bring forward. See Winnipeg Airports Authority Inc. v. EllisDon Corp. , 2011 MBCA 51 , 268 Man.R. (2d) 66.

[6] On October 10, 2001, the application for leave still not having been heard, Chartier, then represented by counsel, filedan amendment to the application for leave, seeking to raise a constitutional issue.

That issue was that, allegedly, the AICAC breachedhis right to have his hearing conducted in a language of his choice; namely, in French. [7] On August 20, 2008, counsel for the AICAC filed a motion to expunge portions of an affidavit Chartier had filed inreply to a motion by the AICAC seeking to admit new evidence. [8] On October 28, 2008, sitting in chambers, I granted an order allowing the AICAC to provide fresh evidence andordering that portions of Chartier’s affidavit be expunged. [9] The order that I granted on October 28, 2008, has yet to be taken out as counsel for the AICAC could not get approvalfor a proposed form of order from counsel for Chartier.

There were numerous exchanges of correspondence between counsel, butnothing was resolved. On June 19, 2012, counsel for Chartier informed the court that, thereafter, Chartier would be acting on his ownbehalf. [10] On May 16, 2013, MPIC brought a motion seeking an order that its application to strike out Chartier’s application forleave due to delay be heard by a full panel of this court. I granted that order on July 3, 2013. [11] The test to be met in seeking to strike an appeal on the basis of delay is set out in Mauer v. McDougall et al, 2001MBCA 2, 153 Man.R. (2d) 259.

The per curiam decision states (at para. 10): There is no dispute as to the applicable law. In Law Society of Manitoba v. Eadie, (MB CA), [1988] 6 W.W.R. 354;54 Man.R. (2d) 1 (C.A.), this court outlined the factors to be taken into account on a motion for delay (at para. 16): “Amongst the matters which should be taken into account on a motion such as this are: (

i) the subject matter of the litigation; (ii) the complexity of the issues between the parties; (iii) the length of the delay; (iv) the explanation for the delay; (

v) the prejudice to the other litigant.” .... [12] Prior to the beginning of the hearing of this matter, Chartier confirmed that he was no longer pursuing what the partieshave termed the constitutional issue; namely, the right to be heard in French by the AICAC. I note that since 2001, the AICAC has theability to hear a party in French. [13] The 15-year delay in prosecuting this application for leave is, to say the least, inordinately long. [14] Chartier provided no explanation for the delay, save to attempt to lay the blame on counsel for the AICAC to justify thefact that the 2008 order had yet to be taken out.

There is no substance to that allegation and, in any event, it fails to provide anexplanation for the delay from 1998 to 2008. [15] The issue sought to be litigated is not a complicated one, although I must state that I would have had strong reservationsas to it raising a point of law or of jurisdiction as opposed to an issue of fact or mixed fact and law, for which of course, leave to appeal isnot available. [16] MPIC has certainly been prejudiced.

The passage of time, in and of itself, gives rise to an inherent prejudice, which inthis case is extreme, given the length of the actual delay. [17] MPIC has met all of the criteria that it must, in justifying the order that it seeks. Accordingly, I would dismissChartier’s application for leave to appeal with costs to MPIC.

J.A. I agree: J.A. I agree: J.A.