The province had agreed to fund an operation outside Canada. It later refused additional funding, treating the proposed further procedures as emerging treatment. That change led to a dispute about the meaning of Manitoba's public insurance rules.
In Fehr v Manitoba (Health Insured Benefits, Insurance Division), 2026 MBCA 52, the Court of Appeal of Manitoba allowed the appeal and returned the funding claims to a differently constituted Manitoba Health Appeal Board. It did not order further payment.
The claimants had received coverage for a procedure abroad in 2020. Further treatment was recommended, but Manitoba Health declined to cover it. The Appeal Board upheld the refusal, and the Court of King's Bench left the decision in place.
The dispute reached the Court of Appeal because the Board had applied an exclusion for emerging procedures. The legal question wasn't whether the proposed treatment was unfamiliar. It was whether the exclusion's complete statutory test had been satisfied.
Section 2(18)(b) of the Excluded Services Regulation requires two things. A procedure must be emerging, and its efficacy must not have been established. Those conditions are distinct. An answer to the first question cannot replace an answer to the second.
The Board had effectively stopped once it regarded the procedure as emerging. It did not properly consider whether efficacy was established. The Court of Appeal found that the Board's approach failed to give effect to the language of the regulation.
Another distinction also mattered. Efficacy addresses whether a procedure can achieve its intended result under ideal conditions. Effectiveness considers how it works in ordinary practice. The legislation chose efficacy, and that choice needed to be respected.
The province's approach had demanded a more exacting evidentiary standard. The Court of Appeal rejected the substitution of a different standard for the one actually prescribed. The fact that officials preferred different proof could not change the regulation.
The judgment also addressed the use of an internal policy memorandum. Administrative guidance can help apply a rule, but it cannot create a general exclusion that the statutory scheme requires to be enacted by regulation.
This was public health insurance, not a private supplemental health policy. The decision does not rewrite private contracts or determine coverage elsewhere in Canada. Its reasoning nevertheless illustrates why an insurer must apply each element of an exclusion.
The outcome was a new hearing, not immediate funding. The claimants succeeded in challenging the legal approach, but a different Appeal Board panel must reconsider the requests. That procedural limit is essential to understanding what the court decided.
The practical point for benefits administrators is not that every emerging procedure must be insured. It is that calling a service emerging is only part of the statutory inquiry. The remaining element cannot be skipped because an internal practice treats the first as decisive.