Court of Appeal Decision of the Week

Insurance: “Student” v. “Part-Time Earner”

Case: Sosnowicz v Manitoba Public Insurance, 2016 MBCA 75 (CanLII)

Keywords: Accident Benefits; Application for Leave to Appeal; Automobile Injury Compensation Appeal Commission; Manitoba Public Insurance Corporation Act, CCSM c P215

Synopsis:

The Appellant, Manitoba Public Insurance Corporation (“MPI”), applies for leave to appeal from a decision of the Automobile Injury Compensation Appeal Commission (the “Commission”). The underlying dispute concerns whether the Respondent, Ms. Jayda Sosnowicz, qualifies as “part-time earner” or “student” under the Manitoba Public Insurance Corporation Act, CCSM c P215.

The Respondent is injured in a motor vehicle accident. At the time of the accident, she is completing her final year of a psychiatric nursing program at Brandon University with three more scheduled shifts in her eight-week practicum. She does not complete the shifts – these are waived by a Brandon University proctor. The Respondent graduates and receives the gold medal.

The Respondent applies for injury benefits under Manitoba’s Personal Injury Protection Plan. In her application for compensation, the Respondent indicates she was, at the time of the accident, in full-time attendance at an educational institution, and also working casual hours with the Canadian Deafblind Association.

An MPI case manager, injury management coordinator, and internal review officer each classify the Respondent as a “student”. However, an internal review officer’s decision notes the Respondent “met all the requirements of a nursing graduate at the time of the accident”. (See para. 6).

The Respondent appeals to the Commission, which rejects MPI’s submission she is a “student” at the time of the accident. The Commission considers the Respondent’s evidence her proctor advised she “met and exceeded” course requirements; concludes as follows:

“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 in Court of Appeal decision]. (See para. 12).

In its application for leave to appeal, MPI 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?

The Court of Appeal denies MPI’s application. For the Court of Appeal, the Commission “plainly rejected” the arguments put forward by MPI – there was no question of law, the issues were not sufficiently important to warrant consideration, and did not have a reasonable prospect of success.

Importance:

Section 187 of the Manitoba Public Insurance Corporation Act provides for an appeal from a decision of the Commission on a question of law or jurisdiction – but only with leave obtained from a judge of the Court of Appeal.

Citing the decision in Harder v Manitoba Public Insurance Corp et al, 2012 MBCA 20 (CanLII), 275 ManR (2d) 298, the Court of Appeal found that, for leave to be granted, an Applicant must demonstrate the following:

  1. that there is a question of law or jurisdiction that arises from the decision;
  2. the question is one of sufficient importance to warrant consideration by this Court; and
  3. the question must have arguable merit in that it has a reasonable prospect of success. (See para. 14).

On this test, MPI was unable to persuade the Court of Appeal that leave to appeal should be granted:

“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 Commission correctly stated the issue and identified the applicable statutory provisions, the question before the Commission was one of mixed fact and law.” [Emphasis Added]. (See para. 27).

For the Court of Appeal, MPI was unable to identify an “extricable question of law” which would engage the issue of how the Commission interpreted “student” under the Act.

Moreover, the Court of Appeal found that, “Even if there is an extricable question of law as to the interpretation of the definition of ‘student’…”, leave would not be granted because MPI failed to demonstrate both that the question was sufficiently important to warrant consideration by the Court, or that it had a reasonable prospect of success. (See para. 28).

The Court stated the applicable standard of review is a relevant consideration in determining whether there is a reasonable chance of success. Pursuant to Harder and Sterling O & G International Corp v Director of Employment Standards Division (Man), 2012 MBCA 18 (CanLII), 275 ManR (2d) 280 (at para 19), the law is “…essentially settled that a question of statutory interpretation by a tribunal of its own statute will be reviewed on the standard of reasonableness”. [Emphasis added]. (See para. 30).

In this case, the Court of Appeal concluded the Commission carefully considered all of the evidence in making its decision – significantly, the decision below was characterized as one of mixed fact and law. As a consequence of this, but especially in light of the “…deferential standard of review that would apply to this question” (para. 31), the Court denied MPI’s application for leave to appeal.

Counsel for the Applicant: Steve Scarfone (Manitoba Public Insurance Corporation,Winnipeg)

Counsel for the Respondent: Ellery Strell (Funk & Strell, Winnipeg)

Counsel for the Respondent Automobile Injury Compensation Appeal Commission: Denis Guénette (Department of Justice (MB), Winnipeg)

Discuss on CanLii connects

Posted: Wednesday, July 27, 2016