The Manitoba Court of Appeal rules that the province erroneously denied out-of-province medical coverage for surgeries needed by twin sisters

Fillmore Riley LLP represented twin sisters Kelsey and Kelly Fehr before the Manitoba Court of Appeal in an important decision on access to funding for out-of-province medical treatment under Manitoba’s public health insurance scheme.

In summary, Manitoba Health refused to fund a medical procedure in reliance on a provision of the Excluded Services Regulation that excludes “emerging” treatments whose efficacy has not been established. The Manitoba Health Appeal Board upheld the denial, and the Court of King’s Bench dismissed the appellants’ application for judicial review.

The Court of Appeal allowed the appeal and quashed the Board’s decision. Justice Mainella held that the Board had misinterpreted the regulation. It had treated the absence of a local standard of care in Manitoba as decisive, when the regulation requires two separate questions: whether the treatment is emerging, and if so, whether its efficacy has been established.

On the record, the surgery was an accepted standard of care in multiple jurisdictions and was unavailable in Manitoba due to a shortage of trained surgeons. The Court found that the only reasonable conclusion was that the surgery’s efficacy had been established, so it could not be excluded under the regulation.

The decision also comments on the rule of law in health care administration. The Court found that Manitoba Health’s practice of excluding a medical service for all Manitobans through an internal memo, rather than through regulation or case-by-case assessment, was contrary to the statutory scheme. It further stressed that the Board must act as an independent check on Manitoba Health and not as a rubber stamp. The matter was returned to Manitoba Health to address the appellants’ further surgeries in light of the court’s reasons, and the appellants were awarded costs in both courts.