Seaver v. Winnipeg Regional Health Date:, 2014 MBCA 55

Citation: Seaver v. Winnipeg Regional Health Date: 20140605 Authority Inc. et al., 2014 MBCA 55 Docket: AI 13-30-08063 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : PEGGY SEAVER, Executrix of the Estate ) D. G. Hill of WESLEY BRUCE COYLE, Deceased ) for the Appellant ) ) H. D. Van Iderstine and (Plaintiff) Appellant ) J. B. Martens ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: DR.

RALPH WONG ) May 28, 2014 ) ) Written reasons: (Defendant) Respondent ) June 5, 2014 CAMERON J.A. [ 1 ] The appellant, as executrix of the estate of the late Wesley Bruce Coyle (Coyle), appealed the decision of the trial judge dismissing the estate’s claim against the respondent for civil fraud. At the conclusion of the hearing of the matter we dismissed the appeal with reasons to follow. These are those reasons. [ 2 ] After battling melanoma for a number of years, Coyle reached a stage where lung cancer was suspected.

His treating physician referred him to the respondent, a medical oncologist, for his opinion regarding systemic therapy. Prior to meeting with the respondent, Coyle attended to the United States and received treatment for his condition. Despite being advised of the need to do so by the patient representative for CancerCare Manitoba, Coyle did not seek prior approval from Manitoba Health for the cost of his treatment in the United States.

Rather, he applied for reimbursement after his treatment there was complete. [ 3 ] The foundation for the lawsuit lies in a letter that was written by the respondent in response to an inquiry from Manitoba Health. That letter contained inaccuracies regarding the nature and availability of certain cancer treatments that could be provided to Coyle both in Manitoba and Canada. [ 4 ] Ultimately, Manitoba Health denied Coyle’s request for reimbursement.

In the letter refusing coverage, Manitoba Health first outlined the requirements that must be met to qualify for approval for funding for medical services outside Manitoba. The next paragraph of the letter stated: ….

We regret that we are unable to approve benefits as the information provided fails to demonstrate that the service you requested, namely cancer interleukin therapy, cannot be adequately provided in Manitoba or elsewhere in Canada. …. [ 5 ] Coyle appealed to the Manitoba Health Appeal Board (the board), and, after a de novo hearing, the board dismissed his appeal on the basis that he did not obtain a referral, for any of the medical services that he received in the United States, by a medical practitioner practising in Manitoba who was a specialist in the appropriate field of practice, in accordance with s. 16(2) (

a) of the Hospital Services Insurance and Administration Regulation , Man. Reg. 48/93. The board decided that it did not need to determine whether the treatment was available in Manitoba or elsewhere in Canada. In its reasons, the board commented that “the weight and value of any evidence set out in [the respondent’s letter] may be properly diminished.” Further, the board stated that “[the respondent’s] assertions,

especially where they contradict viva voce evidence and are contrary to the interests of [Coyle], had little, if any, relevance to the Board’sdeliberation.” [6] Coyle sued the respondent, alleging that the misstatements contained in the letter amounted to civil fraud whichcaused the rejection of Coyle’s claim for reimbursement. When Coyle died in 2010, his estate continued the action.

The trial judgedismissed the action. [7] While the appellant raises six grounds of appeal, they are all based on the fact that the trial judge did not consider thatthe inaccurate statements made by the respondent constituted a civil fraud within the meaning of Derry v. Peek (1889), 14 A.C. 337. [8] The parties appropriately agree that the grounds of appeal raise issues of mixed fact and law; therefore the standard ofreview is that of palpable and overriding error.

The functional equivalents of palpable and overriding errors are those errors that are“clearly wrong” and “unreasonable.” Further, the error must be such that it affected the outcome. (H.L. v. Canada (Attorney General),2005 SCC 25 at paras. 55, 100, [2005] 1 S.C.R. 401.) [9] In finding that the action was not made out, the trial judge properly stated Canadian law at the time regarding the tortof civil fraud. He also reviewed the extensive documentary evidence before him, including transcripts from the discovery of therespondent as well as hearing viva voce evidence.

Ultimately, he held that the most blatant misstatement in the letter was, in fact, atypographical error. He concluded that the balance of inaccuracies in the letter did not rise to the level of reckless or willfulmisstatements required to constitute a civil fraud. (See Parna v. G. & S. Properties Ltd. et al., (SCC), [1971] S.C.R. 306at 316-17.) [10] The appellant has failed to persuade me that the trial judge committed any palpable and overriding errors.

His findingsof fact and the conclusions he made were available to him based on the entire record. [11] Furthermore, after the trial judge gave reasons, the Supreme Court of Canada released its decision in Bruno Applianceand Furniture, Inc. v. Hryniak, 2014 SCC 8. In that case, Karakatsanis J., writing for the unanimous court, reviewed and restated theelements required to be proved for the tort of civil fraud. Importantly for this case, she discussed the requirement of causation stating (atpara. 19): … [T]he false statement must “actually [induce the plaintiff] to act upon it” (p. 316, quoting Anson on Contract).

Requiring the plaintiffto prove inducement is consistent with this Court’s later recognition in Snell v.

Farrell, (SCC), [1990] 2 S.C.R. 311, atpp. 319-20, that tort law requires proof that “but for the tortious conduct of the defendant, the plaintiff would not have sustained theinjury complained of”. [12] The appellant argued that the tort of civil fraud can be committed where the false statement is not made directly to aplaintiff, but to a third party, such as Manitoba Health, to induce the third party to harm a plaintiff. [13] It is not necessary for the purpose of this decision to determine the above issue because, even assuming the appellant iscorrect, causation has not been proven.

As is apparent from its reasons, the board rejected Coyle’s claim on the basis that he did notobtain a referral by a medical practitioner practising in Manitoba who was a specialist in the appropriate field of practice. [14] The appellant asserts that there would have been no need for an appeal to the board if Manitoba Health had been awareof the inaccuracies in the respondent’s letter. In other words, the appellant argues that Manitoba Health would not have denied Coyle’sclaim for reimbursement.

In my view, this is simply speculative and does not change the fact that the board denied his appeal after a denovo hearing wherein it specifically refused to consider any information in the respondent’s letter which might have been contrary toCoyle’s interest. [15] For the above reasons, the appeal was dismissed with costs. J.A. I agree: J.A. I agree: J.A.