Sosnowicz v Manitoba Public Insurance Date:, 2016 MBCA 75

Citation: Sosnowicz v Manitoba Public Insurance Date: 20160707 Corp et al, 2016 MBCA 75 Docket: AI16-30-08545 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : JAYDA SOSNOWICZ ) S. M. Scarfone ) for the Applicant (Appellant) Respondent ) ) E. G. Strell - and - ) for the Respondent ) J. Sosnowicz MANITOBA PUBLIC INSURANCE ) CORPORATION ) D. G.

Guénette ) for the Respondent (Respondent) Applicant ) Automobile Injury ) Compensation Appeal - and - ) Commission ) AUTOMOBILE INJURY COMPENSATION ) Chambers motion heard: APPEAL COMMISSION ) June 16, 2016 ) Respondent ) Decision pronounced: ) July 7, 2016 HAMILTON JA [ 1 ] Manitoba Public Insurance Corporation (MPI) applies for leave to appeal the decision of the Automobile Injury Compensation Appeal Commission (the Commission) with respect to the classification of the respondent, Jayda Sosnowicz (the respondent), under The Manitoba Public Insurance Corporation Act , CCSM c P215 (the Act ), for the purpose of determining her income replacement benefits. [ 2 ] The Commission concluded that the respondent’s proper classification was “part-time earner”, and not “student”, as MPI had determined.

It found that she had “completed her studies” as a psychiatric nurse at “the time of the [accident]” and therefore was not a “student” pursuant to the definition of student under section 70(1), as clarified by section 87(2) , of the Act :

Definitions 70

(1) In this Part . . . “ student ” means a victim who, at the time of the accident, is (a) 18 years of age or older and attending a secondary or post-secondary educational institution on a full-time basis. Student at secondary, post-secondary institution 87(2) [A] student is considered to be attending a secondary or post-secondary educational institution on a full-time basis from the day the student is admitted by the educational institution as a full-time student in a program of that level until the day the student completes, abandons or is expelled from his or her current studies, or no longer meets the requirements of the educational institution.

Background [ 3 ] The respondent was injured in a motor vehicle accident on April 11, 2011. At the time of the accident, she had completed all her course work for her fourth and final year of the psychiatric nursing program at Brandon University (the University), and was scheduled for three more shifts in her eight-week practicum. She did not complete those shifts, which were waived by the University proctor, and she graduated on June 3, 2011, receiving the gold medal. [ 4 ] The final day of the nursing program was April 22, 2011.

The University sent the respondent’s Confirmation of Program Completion to the College of Registered Psychiatric Nurses of Manitoba (the College), which was received on April 27, 2011. The College then notified the respondent that she was immediately qualified to work as a graduate psychiatric nurse and would be qualified as a registered psychiatric nurse after writing, and passing, the licensing examination, which was scheduled for mid-May 2011. [ 5 ] On May 26, 2011, the respondent applied for injury benefits with MPI under the Personal Injury Protection Plan.

In her application for compensation, she indicated that she was, at the time of the accident, in full-time attendance at an educational institution, and that she was also working casual hours with the Canadian Deafblind Association. She also explained that she had “successfully completed [her] Senior Practicum and [her] graduation was not affected by the accident.” [ 6 ] The MPI case manager, MPI’s injury management coordinator and MPI’s internal review officer all classified the respondent as a student.

The internal review officer’s decision noted that the respondent “met all the requirements of a nursing graduate at the time of the accident . . . and was 16 days short of completing the program.” [ 7 ] The respondent appealed to the Commission, which rejected MPI’s submission that, at the time of the accident, the respondent was a student, given that she had three more practicum shifts scheduled and had not graduated. [ 8 ] The respondent has not been able to work since the accident. The Commission’s Decision [ 9 ] The Commission set out the facts, evidence and submissions in detail. [ 10 ] It referred to

section 6 of The

Interpretation Act , CCSM c I80 (Rule of liberal

interpretation) as the “starting point” for the

interpretation of all legislation in Manitoba and then stated the issue as follows: Subsection 87(2) of the . . . Act provides that a student ceases to be a student for the purposes of IRI student provisions when “the student completes, abandons, or is expelled from his or her current studies”.

The issue here is whether the [respondent] had “completed” her studies at the time of the [accident]. [ 11 ] After noting the respondent’s evidence “that as of the time of the [accident], she had met and in fact exceeded all of the requirements of the program . . . [and] that she was not required to complete her final three shifts”, the Commission wrote: With no further work being done by [the respondent] after the [accident], she graduated from the program. [R]equirement for the shifts to be officially waived was merely administrative or procedural and was not related to the requirements of the program. [ 12 ] The Commission concluded: [I]n interpreting the provisions of subsection 87(2) of the . . .

Act in a liberal manner in order to determine whether, at the time of the [accident], the [respondent] had completed the program, finds that the relevant evidence is the [respondent]’s testimony that she had a syllabus outlining the course requirements and that her proctor had advised her that she had met and exceeded all of them at the time of the [accident] . . . .

Based on this evidence, the panel finds that at the time of the [accident], the [respondent] had completed her studies in that all necessary academic and clinical requirements had been concluded and therefore the [respondent] did not meet the definition of a “student” under subsection 87(2) of the . . . Act . Accordingly the [respondent] therefore did not meet the definition of a “student” under subsection 70(1) of the . . . Act. Therefore, the [respondent ] , due to her part-time employment with the CDA, fell within the definition of “part-time earner” under subsection 70(1) of the . . . Act.

[emphasis added] MPI’s Asserted Errors of Law [ 13 ]

Section 187 of the Act provides for an appeal from a decision of the Commission on a question of law or jurisdiction, and only with leave obtained from a judge of the Court of Appeal. [ 14 ] For leave to be granted, MPI must demonstrate that there is a question of law or jurisdiction that arises from the decision. As well, the question must be one of sufficient importance to warrant consideration by this Court and the question must have arguable merit in that it has a reasonable prospect of success.

See Harder v Manitoba Public Insurance Corp et al , 2012 MBCA 20 , 275 ManR (2d) 298 . [ 15 ] MPI asserts that the Commission’s decision raises the following questions of law: 1. Did the Commission err in how it interpreted “student” under the Act ? 2. Did the Commission err in finding that the respondent had completed her studies at the time of the accident under section 87(2) of the Act ?

MPI’s Position [ 16 ] The essence of MPI’s position is that the Commission erred in law because it ignored certain evidence and made certain findings without any supporting evidence. [ 17 ] It argues that the Commission ignored the evidence that, at the time of the accident, the respondent still had three clinical shifts scheduled, the final day of the nursing program was April 22, 2011, the College received the official confirmation of the respondent’s completed studies on April 27, 2011, the respondent graduated from nursing on June 3, 2011 and that her application to MPI stated that she was a full-time student.

MPI points out that the proctor’s letter, dated May 16, 2011, relied on by the Commission, states that the respondent had “successfully completed her program of studies”, which it says is not the same as stating that she had done so “at the time of the accident.” [ 18 ] MPI also argues that the Commission erred in law when it found, without supportive evidence, that the waiver of the three clinical shifts was administrative or procedural in nature, and when it stated that The

Interpretation Act was the starting point of its analysis because the starting point should have been the Act . [ 19 ] MPI says that it is important for this case to go to appeal to ensure certainty for other cases. It says that the “time of the accident” is the crucial timeframe for establishing a victim’s classification under the Act , and the Commission’s approach in this case will lead to uncertainty in the administration of the Act .

It is also concerned that this case will create a “slippery slope” precedent that will open the door to less strict classifications, which will, in turn, have a detrimental financial effect on MPI. [ 20 ] As for the reasonable prospect of success, MPI points to other decisions where leave was granted in, what it argues, are similar circumstances; for example, see Dupuis v Manitoba Public Insurance Corp et al , 2007 MBCA 53 , 214 ManR (2d) 126 ; and Goossen v Manitoba Public Insurance Corp et al , 2003 MBCA 105 , 177 ManR (2d) 203 .

The Respondent’s Position [ 21 ] The respondent submits that the Commission’s decision was all about the facts, and that MPI has not demonstrated a question of law, let alone one that is arguable. She says that the Commission understood the legal question and applied the evidence to answer it. [ 22 ] She says that there is no “slippery slope” concern because the facts are unique. [ 23 ] She distinguishes the facts here from the cases relied on by MPI. The Commission’s Position [ 24 ] The Commission is a respondent to this application pursuant to section 187(4) of the Act .

Its position is that leave should be denied. [ 25 ] Its counsel agrees with the respondent that this case was highly factual, and that the question before the Commission was a question of mixed fact and law, not a question of law alone. Even if there was an extricable question of law, the Commission points to the deferential standard of review of reasonableness that would apply, and says that there is no reasonable prospect of success. Furthermore, it says that this highly factual case does not warrant the attention of the Court. Decision [ 26 ] MPI has not persuaded me that leave to appeal should be granted.

In my view, the Commission’s decision does not raise questions of law, as asserted by MPI. [ 27 ] MPI acknowledges that the Commission referred to the correct statutory provisions and stated correctly the issue before it, being whether the respondent, at the time of the accident , had completed her studies. MPI asserts that the Commission erred in law in finding that the respondent had completed her studies at the time of the accident, and therefore was not a student under the Act . It says this finding was a question of statutory

interpretation. I disagree. The Commission had to consider the evidence in the context of the

applicable law, and make a finding as to whether the respondent was a student at the time of the accident. Given that the Commissioncorrectly stated the issue and identified the applicable statutory provisions, the question before the Commission was one of mixed factand law. MPI has not identified any extricable question of law with respect to how the Commission interpreted “student” under the Act. [28] Even if there is an extricable question of law as to the

interpretation of the definition of “student” under the Act, I wouldnot grant leave because MPI has not demonstrated that the question has sufficient importance to warrant consideration by this Court, orthat it has a reasonable prospect of success. [29] MPI’s arguments that the Commission’s decision will create a “slippery slope” precedent that will lead to uncertainty,and have negative implications for MPI in other cases, are not persuasive. [30] The applicable standard of review is a relevant consideration in determining whether there is a reasonable chance ofsuccess. See Harder at paras 28-29. The law is essentially settled that a question of statutory

interpretation by a tribunal of its ownstatute will be reviewed on the standard of reasonableness. Freedman JA explained this in Sterling O & G International Corp v Directorof Employment Standards Division (Man), 2012 MBCA 18, 275 ManR (2d) 280 (at para 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 Code by the Board, including any final decision by the Board on alternative service methods. SeeAlberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) et al., (2011), 2011 SCC 61 , 424 N.R. 70;519 A.R. 1; 539 W.A.C. 1; 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), theinterpretation 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] MPI argues that the Commission erred in law in how it interpreted its own statute. Given the deferential standard ofreview that would apply to this question, I am of the view that this argument has no reasonable prospect of success. [32] Furthermore, the Commission’s decision does not demonstrate that it ignored evidence, as argued by MPI. To thecontrary, it considered all the evidence carefully.

The Commission plainly rejected MPI’s arguments as to what evidence was significantfor the purpose of answering the issue of whether the respondent was a student or not at the time of the accident. [33] Finally, there is simply no merit to MPI’s arguments that the Commission erred in referring to

section 6 of TheInterpretation Act, and in finding that the waiver of the three shifts was administrative or procedural. [34] For these reasons the application for leave to appeal is denied. The respondent shall have her costs from MPI. JA