Lall v Manitoba Public Insurance Date:, 2021 MBCA 89

Citation: Lall v Manitoba Public Insurance Date: 20211027 Corporation et al, 2021 MBCA 89 Docket: AI21-30-09665 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : DR. DEBRA LALL ) D. Lall ) on her own behalf (Appellant) Applicant ) ) A. J. Robertson - and - ) for the Respondent ) Manitoba Public Insurance MANITOBA PUBLIC INSURANCE ) Corporation CORPORATION ) ) T. D.

Edkins (Respondent) Respondent ) for the Respondent ) The Automobile Injury - and- ) Compensation Appeal ) Commission THE AUTOMOBILE INJURY ) COMPENSATION APPEAL ) Chambers motion heard: COMMISSION ) October 14, 2021 ) Respondent ) Decision pronounced: ) October 27, 2021 LEMAISTRE JA [ 1 ] The appellant seeks leave to appeal the decision of the Automobile Injury Compensation Appeal Commission (the Commission) declining to extend the 90-day time limit for filing her appeal.

Background [ 2 ] The appellant sought to appeal to the Commission the decision of the internal review officer of the Manitoba Public Insurance Corporation (MPIC), issued on May 11, 2016 (the internal review decision).

She filed her notice of appeal on April 30, 2020, well beyond the 90-day time limit provided for in section 174(1) of The Manitoba Public Insurance Corporation Act , CCSM c P215 (the Act ), which states: Appeal from review decision 174(1) A claimant may, within 90 days after receiving notice of a review decision by the corporation or within such further time as the commission may allow, appeal the review decision to the commission. [ 3 ] Pursuant to the Commission’s Guidelines for Hearings (see Automobile Injury Compensation Appeal Commission, “Guidelines for Hearings” (8 September 2021), online (pdf): Government of Manitoba <www.gov.mb.ca/cp/auto/pubs/aicac_guidelines.pdf> (date accessed 21 October 2021) (the guidelines)), the Commission requested a

written explanation for the delay (see

section 4.1). In her written submission, the appellant explained that, due to her personal circumstances, “[n]avigating this process with [MPIC] . . . made for a very overwhelming experience that put great strain on [her].” She wrote that, sometime after receiving the internal review decision, she eventually reviewed her medical file. After doing so, she realized that the internal review officer was missing a relevant document and that the internal review decision contained incorrect information.

However, by that point, the 90-day time limit for filing her appeal had passed. [ 4 ] The Commission provided the appellant’s written explanation to MPIC. After MPIC indicated that it was opposed to an extension, the Commission scheduled a hearing. The hearing was set for June 9, 2021. [ 5 ] In accordance with the guidelines, on May 14, 2021, the Commission provided to the parties the material from the appellant’s MPIC file that, in its view, was relevant to the hearing (the indexed file) (see

section 4.3). [ 6 ] On June 7, 2021, counsel for MPIC attempted to file two prior Commission decisions, as well as documents from a different appeal proceeding involving the appellant (the other documents). Pursuant to the guidelines, which state that “[a]ll new documentary evidence not already in [the] indexed file must normally be filed with [the Commission] at least 30 days prior to the hearing” (at

section 7.1), the Commission declined to admit the documents as part of the record. However, it acknowledged that counsel would be permitted to refer to the prior Commission decisions in his submissions and may be able to use the other documents “for rebuttal purposes.” [ 7 ] On the morning of the hearing, the appellant sought an adjournment due to a work-related matter. With the consent of MPIC, the hearing was adjourned to June 23, 2021. [ 8 ] On June 22, 2021, the appellant communicated to the Commission that, at the hearing, she intended to refer to material which was not in the indexed file.

She also attempted to file a 14-page document. She was advised that, pursuant to the guidelines, she could only refer to material contained in the indexed file and that only the first nine and one-half pages of her 14-page document would be accepted as a written submission, as the remaining pages contained new evidence. [ 9 ] At the hearing, the appellant testified and both parties made oral submissions. [ 10 ] During her testimony, the appellant explained that she had not read the entirety of the internal review decision and, in particular, the

section setting out the right to appeal and the 90-day time limit for filing an appeal. She also stated that it was not until much later that she discovered she could request an extension to the 90-day time limit. [ 11 ] The Commission issued its decision and reasons on August 4, 2021. It declined to exercise its discretion to extend the 90-day time limit and dismissed the appellant’s appeal. [ 12 ] In reaching its decision, the Commission considered factors including: . . . 1) [t]he actual length of the delay compared to the 90 day time period set out in

section 174 of [the Act ]; 2) the reasons for the delay; 3) whether there ha[d] been any prejudice resulting from the delay; 4) whether there ha[d] been any waiver respecting the delay; [and] 5) any other factors which argue to the justice of the proceedings. . . . [ 13 ] The Commission determined that the appellant “became aware of the Commission and its role and of her objections to the [internal review decision]” as early as 2017.

It acknowledged that the appellant “felt overwhelmed at that time”, but found that her reasons for not filing the appeal until April 30, 2020, did not sufficiently “explain the unusually long delay”.

The Commission concluded that “[t]he [a]ppellant’s submission that she did not fully read the [internal review decision was] not a reasonable excuse for her failure to act.” It also concluded that there were no “compelling reasons for the [a]ppellant not to have at least taken the first step of completing and filing [a notice of appeal] in 2017, when she became aware of her objections to the [internal review decision].” Analysis [ 14 ] The appellant’s proposed grounds of appeal raise the following issues: 1. whether the Commission erred by allowing MPIC to submit documents within 30 days of the hearing; 2. whether the Commission erred by refusing to allow her to submit documents on the day prior to the hearing; 3. whether the Commission erred by excluding the majority of her written submission from the decision; and

4. whether the Commission’s reasons for decision are inadequate. [15] In her written materials and oral submission, the appellant raises a number of additional issues regarding theproceedings. She asserts that the proceedings were unfair. In particular, she argues that the Commission did not provide adequateinformation about its processes and did not give her a full opportunity to present her case.

Other examples of the Commission’s conductthat she argues was unfair include the following: • Despite being available on its website, the Commission did not draw the guidelines to her attention. • The hearing was rushed because the Commission did not tell her that it was scheduled for three hours and, therefore, shehad scheduled only one hour. • The Commission provided the indexed file on May 14, 2021, which did not give her adequate time to prepare for thehearing. • The Commission did not alert her to concerns set out in their reasons about her assertion that she was overwhelmed andunable to file the notice of appeal. [16] On her motion for leave to appeal, the appellant filed a number of documents attached to her affidavit.

Some of thedocuments are duplicates of material that is in the record of proceedings filed by the Commission. However, many of the documentswere not part of the record. Ordinarily, new evidence is not receivable on leave applications (see Fletcher v Manitoba Public InsuranceCorp et al, 2008 MBCA 56 at paras 9-13). Accordingly, at the hearing, the appellant was asked to identify documents which support herargument regarding procedural fairness.

With the consent of counsel for MPIC and for the Commission, I have considered only thosedocuments identified by the appellant. [17] Sections 187(1) and 187(2) of the Act provide the right to appeal the Commission’s decision only on questions ofjurisdiction or of law and only with leave. The questions raised must not require the Court to assess or analyze conflicting factual issues.

Leave will only be granted if the questions are of sufficient importance to merit the attention of the full Court and have a reasonableprospect of success (see Loewen v Manitoba Public Insurance Corp et al, 2009 MBCA 16 at para 2; and Levin v Manitoba PublicInsurance Corporation et al, 2021 MBCA 16 at para 2). [18] The nature of procedural fairness owed in any particular situation is determined by a fact-based analysis uponconsideration of the non-exhaustive list of factors set out in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras 23-28 (see Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111 at paras 15-16; seealso Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 77). [19] The only issue before the Commission was whether to grant the appellant an extension of time to file her appeal of theinternal review decision.

Having considered the appellant’s assertions regarding procedural fairness (including points not referred toabove) in the context of the Baker factors and the issue before the Commission, I am not satisfied that there exists an arguable case ofsubstance which is of sufficient importance to merit the attention of the full Court. [20] As counsel for the Commission and MPIC point out, section 182(3) of the Act provides the Commission with the powerto set its own practice and procedure.

Therefore, absent “a clear breach of the rules of natural justice in the manner in which theCommission conducted the appeal hearing, it is not for this Court to interfere in what is essentially its internal procedure” (Dubbert vWhite, 1998 CarswellMan 27 at para 6 (CA)). [21] There is no arguable merit to the appellant’s assertion that the Commission failed to follow the guidelines by allowingMPIC to submit documents within 30 days of the hearing.

The Commission indicated that it would permit counsel for MPIC to refer tothe two prior decisions of the Commission during submissions and that the other documents may be used for rebuttal purposes. However, it did not admit the material provided by MPIC on June 7, 2021 into the record, and the other documents submitted by MPIC“for rebuttal purposes” were never used. [22] Nor is there arguable merit to the appellant’s assertion that the Commission erred by refusing to allow her to submitdocuments one day prior to the hearing.

The pages that were excluded by the Commission have nothing to do with the issue before itand its conduct was consistent with the guidelines. [23] The appellant argues that the Commission failed to provide adequate information about its processes, did not direct herto the guidelines and provided the indexed file too close to the hearing date to allow her to adequately prepare. [24] While it is unfortunate that the appellant was not aware of the guidelines, they were available on the Commission’swebsite along with other information about its processes.

Although she argues that she had not been able to properly prepare and that thehearing was rushed because she thought it was only scheduled for one hour, she did not raise these or any other concerns about theprocess during the hearing and they were not addressed by the Commission in its decision.

Nor did she seek an adjournment of thehearing to allow her more time to prepare. [25] Moreover, the record demonstrates that, in the context of the issue before the Commission, the hearing was fair, theappellant was given a full opportunity to present her explanation for the delay and to persuade the Commission that the 90-day time limitshould be extended, and the Commission understood her position. [26] Ultimately, the appellant has been unable to demonstrate how the process or the Commission’s conduct impacted on thefairness of the hearing or the Commission’s decision, other than to say that her position would have been more persuasive. [27] Regarding the appellant’s assertion that the Commission’s reasons are inadequate, “[t]he Commission is not obliged toarticulate in its reasons a detailed review of the testimony of witnesses” (Fletcher at para 22).

When read in the context of the record,

the Commission’s reasons are clear, comprehensive, and responsive to the issue before it. The reasons demonstrate the Commission understood the issue before it, as well as the appellant’s concerns. Conclusion [ 28 ] While I have not addressed all of the appellant’s arguments in these reasons, I have considered each of them. The appellant has not demonstrated an arguable case requiring a more thorough examination (see Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 at para 74 ). [ 29 ] In the circumstances , the appellant’s motion for leave to appeal is dismissed. I make no order as to costs. JA