Executive Summary: Key Legal and Evidentiary Issues

• Martin Korsch applied for leave to appeal the Automobile Injury Compensation Appeal Commission's decision upholding the calculation of his income replacement indemnity (IRI) for 2022.
   
• Arising from two separate motor vehicle accidents — in 1999 (self-employment claim) and 2004 (employment claim) — both IRI entitlements were indexed annually by MPIC under The Manitoba Public Insurance Corporation Act.
   
• The internal review officer (IRO) made errors in its reasons, including a false reference to a Canada Pension Plan disability entitlement the applicant was not receiving and a mistaken reclassification of the self-employment claim as an employment claim.
   
• Despite those errors, the commission found that both IRI entitlements were correctly calculated based on the applicant's marital and self-employed status, relying on the conclusions of an IRI accounting specialist.
   
• Korsch's submissions to the Court of Appeal raised issues — including alleged signature fraud in a 2015 MPIC agreement, a 2018 hospitalization, a 2020 driver's licence suspension, and systemic mismanagement — that were unrelated to the 2022 IRI calculation under review.
   
• Leave to appeal was denied on the basis that Korsch failed to raise a question of law or jurisdiction, or an arguable case of substance, in relation to the commission's decision.

Facts of the case

Martin Korsch was involved in a motor vehicle accident (MVA) in 1999, for which he was entitled to receive income replacement indemnity (IRI) for losses from self-employment (the self-employment claim). In 2004, he was involved in a second MVA, for which he was entitled to receive IRI for losses from employment (the employment claim). Both claims were indexed annually by Manitoba Public Insurance Corporation (MPIC), resulting in his biweekly entitlements being adjusted in accordance with The Manitoba Public Insurance Corporation Act, CCSM c P215, and the Income Tax Act, RSC 1985, c 1 (5th Supp).

In 2022, Korsch appealed his case manager's determination — which had set his biweekly entitlement at $523.40 — to the internal review officer (IRO), who considered both the self-employment and employment claim entitlements. The IRO upheld the case manager's decision but also stated that the self-employment claim should have been calculated as an employment claim, which further reduced Korsch's entitlement. The IRO articulated three reasons for the reduction: (i) Korsch's marital status had changed from married to separated, so he was no longer entitled to the spousal tax credit under the Income Tax Act; (ii) his Canada Pension Plan disability entitlement had increased — a statement the decision itself acknowledged was erroneous, as Korsch was not in receipt of any such entitlement; and (iii) an error had occurred in the factors used to calculate the self-employment claim, which had been changed to employed — a statement the IRO itself had backwards, as the self-employment claim had in fact been wrongly listed as employed for a short period of time.

Korsch appealed the IRO's decision to the Automobile Injury Compensation Appeal Commission (the commission).

Policy and legislative provisions at issue

The leave to appeal framework is governed by sections 187(1) and 187(2) of The Manitoba Public Insurance Corporation Act, CCSM c P215, which provide an applicant the right to appeal a commission decision on a question of jurisdiction or law. As summarized by the Court of Appeal in Levin v Manitoba Public Insurance Corporation et al, 2021 MBCA 16, leave will only be granted if the question is of sufficient importance to merit the Court's attention, and there must be an arguable case of substance — that is, a reasonable prospect of success (see also Loewen v Manitoba Public Insurance Corp et al, 2009 MBCA 16).

Reasoning and analysis

The commission, in detailed and thorough reasons, acknowledged the errors committed by the IRO and stated it could not declare that it was upholding the IRO's entire decision. However, to the extent the IRO upheld the calculations reached by the case manager, the commission concluded that both the self-employment and employment claim IRI entitlements were correctly calculated based on Korsch's marital and self-employed status. In reaching this conclusion, the commission considered and accepted the calculations of an IRI accounting specialist, who identified the errors made by the IRO regarding the 2022 IRI.

Before the Court of Appeal, Korsch's notice of motion listed a question of jurisdiction and law as the proposed ground of appeal; however, his written brief raised alleged errors unrelated to the 2022 IRI, including: the fraudulent insertion of his signature in a 2015 agreement with MPIC; his diagnosis of an illness and hospitalization in 2018; the suspension of his driver's licence in 2020 (which he argued was related to his 2018 diagnosis); failure to fully consider the amounts of the self-employment claim, the employment claim entitlements, and a claim for potential earnings; and systemic mismanagement. At the hearing, Korsch argued that the IRO's errors were sufficient to raise a question of law or jurisdiction warranting leave to appeal. Cameron JA acknowledged that the IRO's errors would understandably cause confusion and mistrust, but found that Korsch's submissions did not raise a question of law or an arguable case of substance in relation to the commission's decision or its conclusion.

Ruling and overall outcome

The Court of Appeal denied Korsch's application for leave to appeal. Cameron JA found that, notwithstanding the IRO's acknowledged errors, Korsch had not raised a question of law or jurisdiction, nor an arguable case of substance, in relation to the commission's decision. MPIC and the commission were the successful parties. No order as to costs was made.