Allstate Insurance Company of Canada v. Nova Scotia (Insurance Review Board)

Allstate Insurance Company of Canada v. Nova Scotia (Insurance Review Board) Court Court of Appeal Date 2006-06-07 Citation 2006 NSCA 70 Docket CA 255726 Judge/Registrar/Adjudicator Oland, Linda L. (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Allstate Insurance Company of Canada v. Nova Scotia (Insurance Review Board) - 2006 NSCA 70 - 2006-06-07 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Allstate Insurance Company of Canada v. Nova Scotia (Insurance Review Board), 2006 NSCA 70 Date: 20060607 Docket: CA 255726 Registry: Halifax Between: Allstate Insurance Company of Canada, and Pembridge Insurance Company Appellants v. Nova Scotia Insurance Review Board Respondent Judges: Saunders, Freeman and Oland, JJ.A. Appeal Heard: February 9, 2006, in Halifax, Nova Scotia Held: Appeals allowed per reasons for judgment of Oland, J.A.; Freeman, J.A. concurring; and Saunders, J.A. dissenting by separate reasons. Counsel: Robert G.Grant, Q.C., and Clare E. Bilek for the appellants Agnes MacNeil, for the respondent Reasons for judgment: [1] This appeal is the first time decisions of the Nova Scotia Insurance Review Board (the Board) have been considered by this court. Allstate Insurance Company of Canada (Allstate) and Pembridge Insurance Company (Pembridge) (collectively, the appellants) appeal decisions dated September 2, 2005 of separate Appeal Panels of the Board. Those decisions upheld decisions of Initial Panels of the Board which ordered each of the appellants to reduce its automobile insurance rates. [2] Without commenting on the propriety of the Board’s appearing as a participant in defence of its own decision, which was not raised as an issue before us, for the reasons which follow, I would allow the appeals. Background [3] In 2003, the Automobile Insurance Reform Act, S.N.S. 2003 (2nd Session), c. 1 (Bill 1) rolled back the rates, effective November 1, 2003, for private passenger automobile insurance by 20%, until the later of November 1, 2004 and the effective date of a new schedule of rates approved by the Board. Bill 1 amended the Insurance Act, R.S.N.S. 1989, c. 231. It also created the Board and provided for the approval of rates and risk classification systems thereafter. [4] The Insurance Act as amended by Bill 1 (the Act) sets out the procedure an insurer applicant is to follow if its application for proposed rates and rate classification systems is not approved. Within 15 days of notification of non-approval, the applicant can appeal that decision to a panel of the Board consisting of three members, none of whom was involved in the first decision (s. 155J). Thus, the Board can be involved twice in an application: first, when an initial panel of the Board decides whether or not to approve the application; and second, if the application should be rejected, when a final panel of the Board hears the appeal of the decision of the initial panel. On the appeal, the Board may approve or refuse to approve the application or may vary the risk classification system or the rates. Any approval may be subject to conditions or restrictions (s. 155J (4)). [5] The appellants retained IAO Actuarial Consulting Services Inc. (IAO) to file applications, on their respective behalves, for approval with the Board. Although IAO’s analysis concluded that Allstate should increase its rates by 7.6%, Allstate decided not to seek any increase above the 2004 rates. IAO indicated that Pembridge should decrease its rates by .7%. However, Pembridge chose not to seek any change. [6] The appellants’ separate applications for approval of rates and rate classification systems were filed in August and September, 2004. The Board issued interim orders for each of the appellants on October 5, 2004. Subject to certain terms, those interim orders approved the proposed rates and risk classification systems effective November 1, 2004. [7] The Board retained Mercer Oliver Wyman (Mercer), actuarial consultants, to review the appellants’ rate applications. In December 2004, the appellants provided certain information requested by Mercer. Mercer then prepared for the Board separate reports concerning the Allstate and Pembridge submissions, dated March 4 and 9, 2005 respectively (collectively, the Mercer Reports). In them, Mercer suggested different assumptions with respect to certain trends, standards and procedures, and the effect of Bill 1. [8] The hearings were conducted in writing; that is, no oral submissions were made by the appellants. By decision dated April 22, 2005, an Initial Panel of the Board ordered Allstate, which had sought no increase, to further reduce its overall automobile insurance rate by 11.0%. By separate decision bearing the same date, an Initial Panel of the same two Board members ordered Pembridge, which had sought to maintain the rate which followed the 20% roll-back pursuant to Bill 1, to further reduce its overall rate by 11.8%. In reaching its conclusions, each of the Initial Panels relied on the Mercer Reports. Those Reports had not been disclosed to either of the appellants prior to the issuance of the decisions of the Initial Panels. [9] Allstate and Pembridge filed notices of appeal pursuant to s. 155J (1) of the Act. Each also applied for stays of execution of the decisions and orders of the Initial Panels. The Board’s interim order of June 16, 2005 pertaining to Allstate granted a stay of execution and ordered that its interim order of October 5, 2004 remain in effect until further order. It also directed that Mercer’s detailed actuarial support for its Report be provided to Allstate. The Board issued an interim order with similar terms in respect to Pembridge. [10] Mercer prepared and delivered to each appellant, a detailed actuarial report dated June 21, 2005 concerning the application made by that appellant. It later supplied supplementary information. On behalf of the appellants and Pafco Insurance Company, another related insurance company, IAO filed a response dated July 22, 2005 to the Mercer Reports and the supplementary information. [11] On September 2, 2005, separate Appeal Panels of the Board issued decisions upholding the decisions of the Initial Panels which had ordered the appellants to reduce their overall automobile insurance rate. Two of the three Board members were the same on each of the Appeal Panels, and the decisions were substantially identical. [12] After the decisions of the Appeal Panels were released, the appellants learned for the first time of memoranda dated September 28, 2004, March 21, 2005 and March 22, 2005 written by Barry Cotnam, the Board’s senior rate analyst. These had been prepared for the Board’s consideration in determining the applications and appeals. They had not been disclosed to the appellants prior to the hearing. No issue is taken on appeal in regard to the September 28, 2004 memorandum. In this decision, the March 21, 2005 and March 22, 2005 memoranda pertaining to Allstate and Pembridge respectively will be referred to collectively as the Cotnam Reports. [13] Each of Allstate and Pembridge appeals the decision of the Final Panel which pertained to it. Both appeals focus upon certain provisions of the Act. Issues [14] The notice of appeal sets out nine grounds. Some concerned the failure of the Board to provide the Mercer Reports prior to the hearing before the Initial Panels, and to provide the Cotnam Reports prior to that before the Final Panels. Others pertained to alleged failures of the Board to consider evidence or alleged erroneous assumptions made by the Board. Others dealt with actuarial methodologies and calculations. [15] For the purposes of this appeal, I need consider only one ground, namely, whether the Board erred in law by refusing to approve an application for risk classification system or rates. Standard of Review [16] The standard of review to be applied on the judicial review of a decision of an administrative tribunal is to be determined by the pragmatic and functional approach: The Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 (SCC) at ¶ 27. In Creager v. Provincial Dental Board of Nova Scotia 2005 NSCA 9 at ¶ 15, Fichaud, J.A. stated: . . . Under the pragmatic and functional approach, the court analyses the cumulative effect of four contextual factors: the presence, absence or wording of a privative clause or statutory appeal; the comparative expertise of the tribunal and court on the appealed issue; the purpose of the governing legislation; and the nature of the question, fact, law or mixed. From this, the court selects a standard of review of correctness, reasonableness, or patent unreasonableness. The functional and practical approach applies even when there is a statutory right of appeal: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paras. 17, 21‑25, 33; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 21. The approach applies even to pure issues of law, for which the standard of review need not be correctness. The existence of the statutory right of appeal and whether the issue is one of law, are merely factors weighed with the others in the process to select the standard of review: Ryan at paras. 21, 41, 42; Dr. Q at paras. 17, 21‑26, 28‑30, 33‑34. [17] The pragmatic and functional approach was considered in C.U.P.E. v. Ontario (Minister of Labour), [2003] S.C.J. No. 28 at ¶ 149: . . . The examination of these four factors, and the "weighing up" of contextual elements to identify the appropriate standard of review, is not a mechanical exercise. Given the immense range of discretionary decision makers and administrative bodies, the test is necessarily flexible, and proceeds by principled analysis rather than categories, seeking the polar star of legislative intent. [18] I turn, then, to the contextual factors to be considered in the pragmatic and functional approach towards determining the appropriate standard of review. [19] The Act contains both a privative clause and a statutory appeal provision. Any finding or determination of the Board on a question of fact within its jurisdiction is binding and conclusive (s. 16W). However, an appeal lies to this court from any question as to the Board’s jurisdiction or upon any question of law (s. 16Z). [20] A further contextual factor is the purpose of the legislation. The Act regulates matters relating to insurance in this province. It is undisputed that Bill 1 was intended to protect consumers from unfair rate increases in the future. See Hansard Debates, September 30, 2003. The amendments it made to the Act secured lower rates for a certain period, and were designed to prevent any rate increases thereafter unless approved by the Board. [21] Section 16B of the amended Act created the Board and set out its functions, powers and duties. That provision reads in part: 16B (1) There is hereby established a board to be known as the Nova Scotia Insurance Review Board. (2) The Board has those functions, powers and duties that are, from time to time, conferred or imposed on it by (a) this Act or any other enactment; or (b) the Governor in Council. (3) The Governor in Council may assign to the Board the powers, functions and duties of any board, commission or agency . . . (4) The Board shall examine into and report to the Governor in Council respecting any matter referred to it by the Governor in Council, including (a) automobile insurance rates and factors affecting them; (b) casualty insurance rates and availability and factors affecting them, including accident insurance, fire insurance, homeowners’ and tenants’ insurance and like coverages; (c) liability insurance rates and availability factors affecting them; and (d) any matter designated by the Governor in Council respecting any class of insurance and the factors affecting its cost or availability. . . . (Emphasis added) [22] The Board was given exclusive jurisdiction for matters within its jurisdiction and, as to such matters, was empowered to hear and determine all questions of law and fact (s. 16S). It can make rules respecting practice and procedure in relation to matters coming before it (s. 16I), and has broad powers for the purposes of obtaining evidence and conducting hearings (see, for example, ss. 16N, 16P, 155F (2) and 158). [23] The Act established a procedure whereby insurer applicants apply to the Board for approval of rate classification systems and rates (s. 155). An application is deemed approved 60 days after filing unless, within that time, the Board advises otherwise (s. 155G(1)). The Board’s authority to refuse such approval, which is central to this appeal, is contained in s. 155I (1) which reads: Refusal to approve 155I (1) The Board shall refuse to approve an application if the Board considers that (a) the proposed risk classification system or rates are not just and reasonable in the circumstances; (b) the proposed risk classification system is not reasonably predictive of risk or does not distinguish fairly among rates; (c) the proposed rates would impair the solvency of the applicant or are excessive in relation to the financial circumstances of the insurer; or (d) the proposed rates or rules are in violation of this Act or the regulations. (2) In deciding on an application, the Board may take into account financial and other information and any other matters that directly or indirectly affect the applicant's proposed rates or the applicant's ability to underwrite insurance using the proposed risk classification system. (3) The Board may approve or refuse to approve the application or may vary the risk classification system or the rates, and the approval may be subject to the conditions or restrictions that the Board considers appropriate in the circumstances. [24] It is apparent then, that the Board was established and clothed with the necessary powers to review applications for risk classification systems and rates. In accordance with the Act, it can approve or refuse to approve the application or may vary the proposed system or rates. [25] The next factor is the comparative expertise of the tribunal and court on the appealed issues. In analyzing the relative expertise of the tribunal and of the court, the court is to characterize the expertise of the tribunal, consider its own expertise relative to that of the tribunal and identify the nature of the specific issue before the tribunal relevant to this expertise: see Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18 at ¶ 28. [26] The Board’s task, in considering applications for approval of a risk classification system or rates, is one which is highly technical and complex. The guidelines governing the filing of applications require the presentation of an enormous amount of detail on matters unfamiliar, I daresay, to almost everyone except actuaries and insurers. This includes information about the applicant insurer, its financial statements, actuarial support or justification for the system and rates sought, and statistical information relating to the insurance industry or rating bureau rates, when applicable. [27] For example, Allstate’s application ran over 300 pages. The complexity and level of detail involved in a rate application can be illustrated by setting out just one of the questions which an insurer applicant must address. Question #8 calls for: A summary of the current & proposed base premiums (Liability, SEF 44, Accident Benefits, Uninsured Automobile, Collision, Comprehensive, Specified Perils, and if applicable, Health Services Levy), and the current & proposed rating classification differentials, a schedule of discounts and surcharges, discount and surcharge factors, and include a reconciliation between the filed base rates and the average rate levels reflecting discounts, surcharges, rating classification differentials and other adjustments. Include a full definition of each subdivided category and a justification for each differential affected, including all relevant data and their source and all underlying calculations. Not surprisingly then, such an application is packed with tables, and dense with figures, assumptions, and projections. [28] The Act does not stipulate that members of the Board must possess particular qualifications. In particular, they are not required to have specific expertise in actuarial science. I do not, however, accept the appellants’ submission that the Board lacks experience in this specialized area. While the Board was established in 2003 and so is a relatively new administrative tribunal, the decisions under appeal were issued almost two years after its formation. It is undisputed that by the end of 2005, it had rendered over 40 decisions. [29] Given the nature of the material before the Board on applications for approval of rate classification systems or rates, I am of the view that, with respect to issues involving matters such as actuarial methodologies and calculations, the Board has much greater expertise than the court. Its determinations with regard to those issues are entitled to considerable deference. [30] I turn finally to the nature of the question. The determination of whether it is one of fact, law or mixed fact and law is aided by the Supreme Court of Canada’s statements in Canada (Director of Investigation and Research) v. Southam Inc., [1996] S.C.J. No. 116 at ¶ 35 thus: . . . Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. . . . [31] The issue in this appeal pertains to the application of s. 155I (1) of the Act which provides that the Board is to consider whether any proposed risk classification system or rates are “just and reasonable in the circumstances.” If it determines that they are not, the Board shall refuse approval. [32] The Board submits that whether the Board erred in refusing the appellant’s applications is a question of mixed fact and law, the determination of which is heavily weighted in the determination of facts. With respect, I am unable to agree. The Board’s characterization does not capture the issue on this appeal. In my view, the issue raises basic questions about the role and functions of the Board in reviewing applications for rate classification systems and rates, pursuant to the Act. It is a matter of statutory interpretation, which includes aspects as to the test which is to be applied and the onus. These are questions of law, and questions for which the court has greater expertise than the Board. [33] Different issues may attract different standards of review. Having taking into account the contextual factors integral to the pragmatic and functional approach, I am of the opinion that the standard of review on this issue, namely, whether the Board erred in law in refusing to approve an application for risk classification system or rates, is that of correctness. I observe, without deciding, that had the issues concerned actuarial methodologies or calculations, the standard of review to be applied may have given the Board considerably more deference. Analysis General [34] The decisions of the Initial Panels and those of the Final Panels, the Mercer Reports, and the Cotnam Reports in respect of Allstate and Pembridge are, of course, not identical. However, they are substantially the same. In order to simplify matters, for the purposes of illustration in this decision, I will use those which pertain to Allstate. If there are significant differences in those which deal with Pembridge which need to be addressed, they will be identified and considered. The Relevant Legislation [35] The provisions of the Act pertaining to the filing of applications for approval of rates and rate classification systems include the following: Approval of risk‑classification system or rates 155G (1) An application for approval of a risk‑classification system or rates is deemed to have been approved by the Board sixty days after it is filed, unless the Board, within that period, advises the applicant orally or otherwise that the Board has not approved the application. . . . Refusal to approve 155I (1) The Board shall refuse to approve an application if the Board considers that (a) the proposed risk classification system or rates are not just and reasonable in the circumstances; (b) the proposed risk classification system is not reasonably predictive of risk or does not distinguish fairly among rates; (c) the proposed rates would impair the solvency of the applicant or are excessive in relation to the financial circumstances of the insurer; or (d) the proposed rates or rules are in violation of this Act or the regulations. (2) In deciding on an application, the Board may take into account financial and other information and any other matters that directly or indirectly affect the applicant's proposed rates or the applicant's ability to underwrite insurance using the proposed risk classification system. (3) The Board may approve or refuse to approve the application or may vary the risk classification system or the rates, and the approval may be subject to the conditions or restrictions that the Board considers appropriate in the circumstances. (Emphasis added) [36] Accordingly, the current process requires insurers to make application for approval of rate classifications systems or rates. It includes a deeming provision: unless, within 60 days of its filing, the Board advises otherwise, an application is deemed approved (s. 155G). The Board must refuse approval in any of the four circumstances set out in s. 155I. On this appeal, the parties’ arguments were directed to s. 155I(a), namely, where the Board considers that the proposed system or rates are not “just and reasonable in the circumstances.” The Role and Function of the Board [37] According to the appellants, the Final Panels erred in law in their interpretation of the powers the Board has under the Act. The crux of their argument was set out in their factum thus: The appeal raises the fundamental questions of the role and functions of the Board and the test which it is to apply in addressing applications before it. In our submission, the Board's function in the cases at bar is to review the applications for reasonableness and justness of the rates. There is no onus upon the applicants to justify their rates; the Board is to conduct a reasonableness review and is not to interfere with the application unless it determines the rate to be unjust or unreasonable (s.155I Insurance Act). The presumption is the rates are to be allowed unless there are circumstances entitling the Board to refuse approval. [38] My analysis starts with a brief recounting of the Mercer Reports and the Initial Panel decisions which relied upon them, and information regarding the insurance industry itself. It then examines the decisions of the Final Panels themselves. [39] Throughout this appeal flows the concept of “reasonableness” as used in actuarial reports. After stating that it had reviewed the Allstate submissions, the Mercer Report pertaining to that appellant continued: Based on our review of the filing and the responses to the questions we have raised, there are several aspects of Allstate’[s] analysis of its rate level needs where we believe that alternate assumptions may be more appropriate: (a) rate group drift, (b) the loss trends, c) the credibility standards and procedure, and (d) the effect of the reforms. (Emphasis added) [40] The Mercer Reports then considered each of those four aspects. For example, in regard to rate group drift, it stated: Allstate judgmentally selects CLEAR system premium rate group factors that range from 8.84% to 9.56% for Collision and from 6.27% to 7.73% for Comprehensive. These factors (percentages) differ from the ones we believe to be most reasonable and which we have applied to other filings we have reviewed of 11% for Collision and 7% for Comprehensive. (Emphasis added) In regard to loss trends, it stated: . . . The differences between Allstate’s selected trends and our selected trends are due to differences in judgments regarding the experience period to consider and the interpretation of the results. (Emphasis added) In regard to credibility standards, it stated: We agree with Allstate that credibility standards should vary by coverage to reflect the difference in the variability in claim size among the various coverages. While we do not find Allstate’s standards for the TPL and Accident Benefits coverages to be unreasonable, the standards are different than the standards we have selected to use in our review of the rate filings. . . . For the complement of credibility, Allstate uses a “Projected Prior Loss Ratio” that is adjusted to reflect tend. This is similar to the approach used by the FA. Conceptually, we find the approach reasonable; however, as neither the Board nor Mercer have reviewed Allstate’s prior filing to determine whether the “Projected Prior Loss Ratio” is reasonable, we do not accept this approach for this filing. (Emphasis added) [41] The Initial Panel used the Mercer Reports in reaching its decision ordering Allstate to reduce its overall insurance rates. In its analysis, the Initial Panel stated: [9] The Final Actuarial Report does not support the overall rates proposed by Allstate. Mercer suggests that alternative, more appropriate assumptions, should be used by the company in arriving at the rates with respect to: a) premium trends; b) loss trends; c) credibility standards and procedure; and d) effect of Bill 1. In every instance, it accepted Mercer’s assumptions or assessments over those submitted by Allstate. [42] The Initial Panel asked itself whether the rates proposed by Allstate for private passenger automobiles were just and reasonable, and complied with the Act and its Regulations. It found that the proposed overall rate change of zero was not just and reasonable, and determined that Allstate should reduce its overall rate by 11.0%, in accordance with changes to coverages as set out in its decision. [43] After receiving the Mercer Reports, Mercer’s detailed actuarial support, and its supplementary information, IAO wrote the Board on July 22, 2005. Its submission on behalf of the appellants provided some helpful background information regarding the insurance industry and actuarial practices: The insurance industry in Nova Scotia is a regulated industry but it is not a monopoly. In fact, it is a highly competitive industry with a large number of competitors carrying on business in the Province. None of these competitors possess dominance in the market. The actuarial profession involves the use of both the most rigorous and exacting scientific tools and at the same time professional judgment. It is a method of using available data and statistical analysis together with judgments and assumptions about trends and effects of changes in the environment to evaluate both the incidents and quantum of future risks. The insurance business involves a company in exchange for a premium agreeing to pay in future certain sums of money upon the happening of certain events. The actuarial profession attempts to convert this agreement from a wager or gamble into a calculated risk, which, multiplied many times by the number of customers of an insurer, will yield to the company a reasonable return. In assessing these risks, actuaries and the companies they serve must strive to find reasonable approaches to the pricing of the insurance products which will be attractive to the market, which will increase their business, and which will increase their profits. Different companies have different claims and loss experiences and different customer profiles. Different companies have different appetites for risk and objectives for return on their investments. Within the scope of generally accepted actuarial policies, reasonable actuaries can engage in reasonable disagreements about which approaches or solutions to an actuarial problem are most appropriate in a given situation. Because the issue involves looking into the future to project what losses are likely to occur, any determination of an indicated rate involves the exercise of judgment. (Emphasis added) [44] The IAO correspondence also noted the differences in approach between its report and the Mercer Reports: We would note that Mercer has carried out a different function than we had carried out. Our work was to prepare an actuarial opinion respecting the indicated rates for the benefit of the companies in forming a business decision respecting the rates which they wished to charge and to support the required filings. While our work indicated that significant rate increases were in order, the companies elected to seek no increase in rates. Mercer’s task was to prepare for legal and regulatory purposes a critique and evaluation of the actuarial evidence in support of the applications. Thus Mercer expresses some opinions respecting the relative appropriateness of a variety of approaches and assumptions. Mercer did not state that the overall rates sought by the Appellants were not just nor reasonable. Similarly, Mercer did not express an opinion that the approaches and assumption of IAO were not reasonable. It merely put forward some “alternative assumptions that may be more appropriate”. Using these alternate assumptions, Mercer suggested different rates which were accepted by the Board. (Emphasis added) [45] IAO was of the view that in regard to some of the loss trends, the technique for determining ultimate losses and the impact of Bill 1, its approaches were consistent with generally accepted principles. With respect to those matters, it acknowledged that Mercer’s opinion, while different, was one which a reasonable actuary might hold. IAO took the position that Mercer’s treatment of the impact of deductible shift upon loss trends and complement of credibility was not consistent with generally accepted actuarial principles. [46] As with the Initial Panel, the hearing before the Final Panel was in writing. The Final Panel had the Mercer Reports, the decisions of the Initial Panels, the July 22, 2005 IAO response for the appellants, and the Cotnam Reports. It considered and rejected several general grounds of appeal pertaining to the decision of the Initial Panel, such as an alleged failure to give reasons for its decision, and various specific grounds of appeal, such as alleged errors in methodology and the impact of Bill 1 reforms. Its decision reads in part: [27] The Appeal Panel has carefully considered the evidence, including the new evidence admitted on Appeal and finds that this difference between the Appellant and Mercer, falls within the category outlined by the Appellant as one where Allstate has, formed our own actuarial opinions but where we recognize that Mercer's opinion, while different, is one which a reasonable actuary may hold. As such, the Appeal Panel is in the position that we must consider which of two different approaches to a specific factor is preferred. The Appeal Panel, in weighing the evidence considers as a factor, the interest and independence of those providing the evidence. The Appeal Panel finds the Mercer approach is more reasonable. (Emphasis added) [47] After dealing with each of the issues, the Final Panel concluded: [43] The Appeal Panel has carefully reviewed the original documentation submitted with Allstate’s filings, the new evidence submitted on Appeal and the Appellant’s other submissions and arguments. Based on the evidence presented, we must determine whether the rates are just and reasonable. We conclude that Allstate has not demonstrated on a balance of probabilities that the Appeal should be allowed and accordingly, the Appeal is dismissed. (Emphasis added) [48] As the Final Panel acknowledged in that passage, it must consider whether or not the rates sought are not “just and reasonable in the circumstances.” Only if it concludes that they are not, is the Board empowered by s. 155I (1)(a) to refuse an application for approval. However, it only stated that it “preferred” other methods or approaches to particular factors. Nowhere in its decision did the Final Panel make this critical determination that rates put forward by the appellants are not “just and reasonable in the circumstances.” As a consequence, the Final Panel failed to meet the statutory requirement upon which a refusal must be founded. This failure resulted in a error in law, sufficient to allow the appeal. [49] Alternatively, if its conclusion can be read as impliedly deciding that essential question, the Final Panel erred in its interpretation of its statutory mandate under s. 155I (1). [50] It is well established that the preferred approach to statutory interpretation is set out by E.A. Driedger in The Construction of Statutes (Toronto: Butterworths, 1974), at p. 67: To-day there is only one principle or approach, namely, the words of an Act are to be read in their entire context in and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. . . . See Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at p. 41 and Bell ExpressVu Limited Partnership v. Rex, [2002] SCC 42 at ¶ 26. [51] Also relevant is s. 9 (5) of the Interpretation Act, R.S.N.S. 1989, c.235 which provides that: Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters: (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (e) the former law, including other enactments upon the same or similar subject; (f) the consequences of a particular interpretation; and (g) the history of legislation on this subject. Several of these matters, such as the object to be attained, have been considered earlier in this decision. [52] The legislative scheme empowers the Board to review applications for rate classification systems and rates. It deems them approved, unless the Board should refuse approval. The Board may only refuse approval if it determines that one of (a) to (d) of s. 155I (1) applies. No reference to the wording of any of (b) to (d) appears in its decision, so the Final Panel must have determined that the rates were not just and reasonable under (a), which it did recognize in its decision. [53] The Final Panel preferred the approach in the Mercer Reports in relation to various factors, describing it as the “more reasonable.” The Mercer Reports state Mercer’s belief that “alternative assumptions may be more appropriate.” They expressly recognized that the approaches taken in the IAO submissions for the appellants are reasonable. Nowhere do the Mercer Reports suggest that those submissions are unreasonable. The difference between those approaches comes down to actuarial judgment and, as can be seen from the extracts quoted earlier from the Mercer Reports and the IAO letter submission to the Final Panel, more than one approach may be reasonable or acceptable. [54] Moreover, s. 155I calls for an application to be refused when proposed system or rates are not “just and reasonable.” The provision does not allow for a refusal based on a selection as to which of two approaches is the more reasonable, as the Final Panel did here. The statutory mandate given to the Board calls on it to reject an application if it is not “just and reasonable in the circumstances,” after taking into account information and matters such as those set out in s. 155I (2). It does not authorize it to do so because its actuaries chose actuarial approaches different from those selected by the insurer applicant, and particularly where the latter approach has not been determined to be unreasonable. [55] I observe as well that, according to the Final Panel, it chose to prefer the evidence contained in the Mercer Reports because it perceived that Mercer, which had been retained by the Board, was disinterested and independent. As indicated earlier, the complexity of applications pertaining to rate classification systems and rates is such that actuaries are integral to the application and review process. However, the position taken by the Final Panel, if applied consistently, means that whenever the judgment of its actuarial consultants is different from that of an insurer applicant, the latter will always be set aside in favour of the former. This is not in accord with the Board’s mandate to approve, disapprove, or vary depending on a determination as to whether the application is “just and reasonable in the circumstances.” [56] Nor does the approach taken by the Final Panel acknowledge the reality that insurance companies are businesses which compete in the marketplace. For example, an insurer may choose, for strategic reasons, to charge higher premiums for one type of coverage and lower premiums for another. It may gain, or it may lose, customers as a result. Where the Board performs a regulatory function, the interests of consumers of insurance services are a consideration. However, the role of the Board in reviewing an insurer's application is not simply to prefer the actuarial approach that results in the lowest rates, or that would tend to create uniform rates within the industry. Such objectives are not contained in the provisions concerning applications for approval in the Act. [57] In summary, the Act sets out a scheme whereby insurers apply for approval of rate classification systems and rates. Such applications are not accepted without question. Nor are they immune from review. The Board is established for that very purpose. However, the starting point is s. 155G of the Act which deems an application approved, unless approval is refused by the Board. The role of the Board is to conduct a review and analysis of the material submitted by the applicant, the Board's actuary and staff, and any other evidence or material the Board may call or admit, and to determine whether the application falls within any of the statutory grounds for refusal of approval set out in s. 155I (1)(a), (b), (c), or (d), after taking into consideration the information and matters set out in s. 155I (2). If the application does not fall within those grounds, then the Board cannot refuse approval. The Act does not permit the Board to do so in any circumstances. Accordingly, when it refuses approval, the onus is on the Board to show that its refusal is based on the criteria set out in s. 155I. By rejecting the Allstate application simply because it preferred the actuarial approach of its own actuaries, the Final Panel erred in law. Disposition [58] Six of the seven members of the Board took part in the decisions and orders issued by the Initial Panels and the Final Panels. The appellants submit that in these circumstances it is inappropriate for the Board to hear their applications again, and that there was sufficient evidence before this court for it to determine whether or not the rates were reasonable. I am unable to agree that the court should make this determination. The Board is given exclusive jurisdiction (s. 16S) subject to appeals on matters of jurisdiction or law (s. 16Z). The Act does not specify the remedies available to the court. Moreover, a great deal of specialized and technical evidence was submitted for the Board's consideration. Finally, there is nothing to indicate that a panel, even if some or all of its members sat on the Initial Panels and the Appeal Panels, due to the number of members which constitute the Board, would not deal with the applications appropriately. [59] I would allow the appeals and remit the applications to the Board, not necessarily the same panels, to be decided in light of the reasons of this court. There will be no award of costs. Oland, J.A. Concurred in: Freeman, J.A. Saunders, J.A. (Dissent): [60] I have had the privilege of reading the draft reasons of Justice Oland. With respect, I do not agree. [61] She has thoroughly reviewed the material facts which led to these proceedings, as well as the statutory framework in which those facts and issues were addressed. I will not mention them again except for emphasis or to lend context to my own analysis. [62] Where I part company with my colleague lies in the characterization of the principal question which the Board was obliged to address and the standard of review that ought to be applied in those circumstances. Whereas Oland, J.A. has described the issue whether the Board erred in refusing to approve an application for risk classification system or rates in language that suggests error in law, and jurisdiction, and interpretation, all being matters “of law, and questions for which the court has greater expertise than the Board” to which “the standard of review on this issue ... (is) that of correctness”, I would characterise it as a question of mixed fact and in law, and one which is clearly weighted on the side of factual determinations, thus attracting a standard of review of reasonableness. Issues [63] The variety of grounds of appeal and the long list of issues said to arise therefrom as expressed in the appellants’ comprehensive written and oral submissions, may all, in my view, be reduced to two principal points. (i) By what standard should the Board’s decisions in this case be reviewed? (ii) Were the appellants denied natural justice by the manner in which the Board conducted these proceedings? I will now turn to a consideration of these two principal questions, having regard to the unique and powerful legislative framework in which this Board operates. Analysis (i) By what standard should the Board’s decisions in this case be reviewed? [64] To answer this question one of course conducts a pragmatic and functional analysis of each of the four contextual factors that must be considered whenever decisions of a statutorily empowered administrative decision-maker become the subject of judicial review. In College of Physicians and Surgeons of British Columbia v. Dr. Q., [2003] 1 S.C.R. 226, Chief Justice McLachlin said: 21. . . . In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach. [65] As this court observed in Thermo Dynamics v. WCAT, 2005 NSCA 150: [15] The standard of review for administrative decisions has been thoroughly addressed by the Supreme Court of Canada. In Dr. Q v. College of Physicians and Surgeons of B.C., (2001) 196 N.S.R. (2d) 313, and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, the Court affirmed the application of the “pragmatic and functional” approach, while encouraging both counsel and lower courts not to lose sight of its purpose, which is to provide a principled conceptual model in every case where dispositions by a statutorily empowered administrative decision-maker, are the subject of judicial review. [16] A consistent and principled application of the pragmatic and functional approach will determine the appropriate standard of review to apply to each of the issues on appeal. The reviewing court is obliged to consider the cumulative effect of four contextual factors: the presence, absence or wording of a privative clause or statutory right of appeal; the comparative expertise of the tribunal and the court, bearing on the appealed issue; the purpose of the governing legislation; and the nature of the question: whether fact, law or a hybrid of both. From this matrix the court selects, for each issue, a standard of review of correctness, reasonableness or patent unreasonableness. See for example Dr. Q at ¶ 22 and ¶ 26 - 35; Ryan at ¶ 27; and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at ¶ 55 - 62. [66] As my colleague points out, the Act contains both a privative clause and a statutory appeal provision. Any finding or determination by the Board on a question of fact within its jurisdiction is said to be binding and conclusive [s. 16W]. An appeal lies to this court upon any question of law or from any question as to the Board’s jurisdiction [s. 16Z]. [67] A second contextual factor is to consider the purpose of the legislation. It is trite to observe that the Insurance Act regulates matters relating to insurance in the Province of Nova Scotia. History records that recent legislative reform was prompted by concern, in some quarters, that insurance rates in this province were unfair, or unjustified, or reflected unexplained disparity in comparison to premiums charged in other parts of the country. It is undisputed that the Nova Scotia government enacted Bill No. 1, assented to on October 30, 2003 as its response to demands to protect consumers from unfair rate increases in the future. One does not need to resort to the Hansard debates to ascertain this contextual background, since the statutory amendments in themselves make it clear that lower rates were secured for a certain period through a 20% rollback in auto insurance rates (s. 154(2)), and were designed to prevent any rate increases thereafter unless approved by the Nova Scotia Insurance Review Board, a newly established tribunal created under those same legislative amendments. [68] Determining the purpose of the Act and the proper application of the legislative provisions in issue on this appeal, require an examination of the statutory scheme as it relates to the Board’s jurisdiction and powers. In my opinion the considerable breadth of both the statutory scheme, as well as the Board’s authority, demonstrate a clear intention on the part of the Legislature to infuse the Board’s mandate with very broad powers. I see the Board’s function as an overseer, a watchdog tasked with approving and regulating rates charged by insurers carrying on business in Nova Scotia. Such a role obliges the Board to take into account not only the interests of insurers who have filed applications, or the industry as a whole, but also the interests of consumers who wish to purchase insurance. Thus there is a very important public interest to be addressed. [69] By the way of example, the Act confers exclusive jurisdiction on the Board for matters within its jurisdiction. 16S (1) The Board has exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction is conferred on it. (2) The Board, as to all matters within its jurisdiction pursuant to this Act, may hear and determine all questions of law and of fact. 2003 (2nd Sess.), c. 1, s. 7. 16T (1) In determining a question of fact, the Board is not bound by the finding or judgment of a court in a proceeding involved in the determination of the fact, but such finding or judgment is, in the proceedings before the Board, prima facie evidence only. (2) The Board has jurisdiction to hear and determine a question of fact notwithstanding that a proceeding involving the same question of fact is pending in a court. 2003 (2nd Sess.), c. 1, s. 7. [70] The Board also has broad rule-making powers: 16I The Board may make rules respecting practice and procedure in relation to matters coming before it. [71] The Act also confers on the Board and its members broad powers in obtaining evidence and conducting hearings (see for example ss. 16N, 16P, 155F, and 158). [72] A review of these and other provisions makes it clear to me that the Legislature intended the Board to have complete and exclusive jurisdiction with respect to the review of rate applications, including setting its own rules and procedures, and stipulating the evidence or materials it requires to be filed for the purposes of determining the application. [73] The next contextual factor obliges us to consider the expertise of the tribunal. The regulation of insurance rates in the province is a specialized area which the Legislature has seen fit to entrust to the Board. I agree with Justice Oland when she says that the Board’s responsibility when considering applications for approval of a risk classification system or rates “is one which is highly technical and complex”. As we have seen, the circumstances which the Board may consider are very broad, based on the statutory provisions set out above. In addition, the filing guidelines published by the Board show a variety of material required to be filed on a rate application including information about the company, the financial statements of the company, actuarial support or justification for the rates sought, and statistical information relating to the insurance industry or rating bureau rates where applicable. One can easily anticipate that such documentation is replete with very detailed and complex graphs, statistics, mathematical assumptions and projections. It certainly was in this case. [74] The record discloses that the Board has already developed a substantial body of jurisprudence to guide its deliberations. A tribunal that has established its own body of work is presumed to have greater expertise. Nova Scotia (Director of Assessment) v. Gatsby’s Bar & Eatery Ltd., [2004] N.S.J. No. 145 (C.A.) at ¶ 14. As well, a certain degree of permanence attaches to Board membership. These are all factors which suggest that the Board’s decision under appeal should be given a high level of deference. See for example. Johnson (Re), 2005 NSCA 99. [75] As stated in the text Donald Brown and John Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998), vol. 3, at p. 14-67: ... agencies with a broad statutory mandate to regulate in the public interest either a complex industry, or economic relationships, are likely to attract the greatest degree of judicial deference. [76] Taking into account all of these factors, the Board should be considered as a specialized tribunal to which a high degree of deference is owed. [77] The last contextual factor to be addressed is the nature of the question. This appeal arises following an application made by the appellants to the Board which then triggered the provisions of s. 155I that provide: 155I (1) The Board shall refuse to approve an application if the Board considers that (a) the proposed risk classification system or rates are not just and reasonable in the circumstances; (b) the proposed risk classification system is not reasonably predictive of risk or does not distinguish fairly among rates; (c) the proposed rates would impair the solvency of the applicant or are excessive in relation to the financial circumstances of the insurer; or (d) the proposed rates or rules are in violation of this Act or the regulations. (2) In deciding on an application, the Board may take into account financial and other information and any other matters that directly or indirectly affect the applicant's proposed rates or the applicant's ability to underwrite insurance using the proposed risk classification system. (3) The Board may approve or refuse to approve the application or may vary the risk classification system or the rates, and the approval may be subject to the conditions or restrictions that the Board considers appropriate in the circumstances. [78] Although the representations in this case required an application by the Board of s-s. 155I(1)(a), a consideration of (b), (c), and (d) is instructive. To my mind the indicia for refusal featured in those latter sub-sections are much more particular and narrow. Things like predicting risk; whether rates would jeopardize the insurer’s solvency; excessive rates in light of the insurer’s financial circumstances; or rates or rules that violate the Act or regulations, are all very specific. They can be contrasted with the more general analysis under (a) which obliges a board to refuse any application whose proposed risk classification system or rates are considered “not just and reasonable in the circumstances”. This broader inquiry, in my respectful opinion, enables the Board to consider relevant factors of its choosing for the purpose of determining whether proposed rates are just and reasonable; undertaking an assessment of a variety of circumstances which would certainly include the economic and financial position of the applicant; the experience of the applicant historically; as well as the industry as a whole; actuarial estimates of risks and losses; and the Board’s own assessment of the interests of the public. [79] The Board had the exclusive jurisdiction to review the appellants’ rate applications for auto insurance. It was the express intention of the Legislature that any matter that could be considered a question of fact relating to the rate filings was to be a final decision of the Board and not appealable. The statute goes so far as to say that the Board need not be bound by any finding of fact by a court, but could consider it as prima facie evidence only in arriving at its own conclusions (s.16T). These are clear indications that the Legislature intended the Board to exercise exclusive jurisdiction over the approval of rates for auto insurance in Nova Scotia, to the exclusion of the courts. [80] As I have shown, appeals to this court under the Act are limited to questions of law, or any question concerning the Board’s jurisdiction. The Board’s consideration of the two applications before it in this case and the application of section 155I(1) to the evidentiary record did not require the Board to address questions of jurisdiction or issues related to the scope of its powers, nor matters of statutory interpretation, which would of course have triggered a judicial review based on a standard of correctness. ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4. Neither is there any suggestion here that the Board’s decisions raise any question as to its jurisdiction. Each of the appellants’ grounds of appeal and submissions were cast as errors of law. I respectfully disagree with my colleague’s conclusion that the Board’s consideration of the impugned applications engaged questions of jurisdiction and statutory interpretation properly characterized as matters of law, thus drawing a standard of correctness to our judicial review. On the contrary, as I see it, there is nothing in either of the Board’s decisions to support the view that they had undertaken, or ought to have undertaken any interpretation of the “just and reasonable in the circumstances” provision of the Act. Rather, the Board simply applied that statutory provision in assessing the merits of the rate applications brought by Allstate and Pembridge. To that extent, the ultimate decision made by the Board as to whether the rates sought by these applicants were just and reasonable in the circumstances, raised a question of mixed fact and law but one heavily weighted on the side of factual determinations. As we have seen, with questions of mixed law and fact, greater deference will be accorded if the question is fact-intensive and less deference if it is law-intensive. See, for example, Dr. Q., supra at ¶ 34. [81] In conclusion, on this issue, I do not see any questions of law arising from the matters raised on appeal. Accordingly, we need not concern ourselves with a standard of correctness. The nature of the question as to whether the rates applied for by Allstate and Pembridge are “just and reasonable in the circumstances” is a question which goes to the very heart of the principal purposes for which the Board was created. Such a question falls squarely within the Board’s area of expertise and must be accorded a high degree of deference. Because I view the Board’s consideration of s. 155I(1)(a) as raising a question of mixed fact and law, and one that is especially fact-intensive, I will apply a standard of reasonableness to my review. [82] After carefully considering the record myself, and applying a “somewhat probing examination” to the Board’s conclusions in both cases, I am not persuaded that the Board’s decisions were unreasonable. There was certainly evidence before the Board which reasonably supports the Board’s findings in every respect. Law Society of New Brunswick v. Ryan, 2003 SCC 20. I see no basis for interfering with their findings. (ii) Were the appellants denied natural justice by the manner in which the Board conducted these proceedings? [83] Here the appellants have assembled a constellation of complaints surrounding the Board’s adoption of the approaches taken by Mercer instead of those advanced by the appellants’ own actuarial consultants IAO; the use to which such actuarial evidence was put; a number of procedural and evidentiary disadvantages the appellants say they faced after being denied an opportunity to review, comment upon or respond to the Mercer reports and the Cotnam memoranda; and an assertion that the Board wrongfully imposed a burden upon the appellants to establish, in effect, that their rates were just and reasonable. [84] In my opinion the long list of arguments and issues raised by the appellants boil down to a consideration of the Board’s own assessment of the evidence before it, and whether the manner in which it conducted these proceedings was contrary to the rules of natural justice. [85] With respect, I see no merit to the appellants’ submissions. I will deal first with the point concerning the assessment of the evidence, and then turn to the allegation that the appellants were denied natural justice. [86] I have already canvassed the very broad statutory powers by which the Board is authorized to carry out its work. It has all of the powers of a commissioner under the Public Inquiries Act (s. 16N). It may receive and consider any evidence which in the Board’s judgment may assist it in dealing with the matters before it, whether or not such evidence would be admissible in a court of law (s. 16P). Any application for approval (such as were filed by the appellants in this case) must be in a form approved by the Board together with any evidence the Board may require, either at the time of filing or as otherwise subsequently ordered by the Board (s. 155F). Broad access to the applicant insurer’s own business records including information concerning return on investment, profit, retained earnings, commissions, and executive compensation, is granted to the Board (s. 158). We have already seen that the Board is granted exclusive jurisdiction in all matters conferred to it by the Act and may decide all questions of law and fact relating to those matters falling within its jurisdiction (s. 16S). The Board is given complete authority to devise its own rules with respect to practice and procedure (s. 16I). [87] Having carefully considered the decisions of the Board in these two cases, I am satisfied that its reception and assessment of the evidence in these cases fall squarely within its statutory mandate. I see no basis warranting this court’s intervention. In my opinion, the Board properly considered all of the necessary aspects of rate making including the approaches and methodologies used by the actuaries, the rate indications put forward by those actuaries, and other indicia that arose in the context of considering the appellant’s own financial situation and practices, as well as appropriate data and indications within the industry as a whole. The Board understood and dealt with the question it was asked to decide. After careful consideration the Board determined that the rates proposed by Allstate and by Pembridge respectively were not just and reasonable, and that they ought to comply with the overall percentage rate reduction stipulated by the Board. This was clearly an issue of mixed fact and law, but as close to being a determination of fact as is possible to find on the analytical spectrum. In considering the Board’s decisions and reasoning I see a discernable line of analysis that could reasonably lead the appeal panels to their respective conclusions. I would not disturb their orders. [88] At the heart of the appellants’ written and oral submissions lies a rationale for the Board’s existence which in my respectful opinion is misconceived and flawed. To quote from the appellant’s factum: The appeal raises the fundamental questions of the role and functions of the Board and the test which it is to apply in addressing applications before it. In our submission, the Board’s function in the cases at bar is to review the applications for reasonableness and justness of the rates. There is no onus upon the applicants to justify their rates; the Board is to conduct a reasonableness review and is not to interfere with the application unless it determines the rate to be unjust or unreasonable (s.155I Insurance Act). The presumption is the rates are to be allowed unless there are circumstances entitling the Board to refuse approval. [underlining mine] [89] This submission is far too limiting in its description of the Board’s role, and ignores the very broad statutory powers and jurisdiction accorded the Board to which I have already referred. [90] The appellants say that simply because they filed an actuarial opinion whose author opined that the proposed rates were reasonable based upon that actuary’s calculation of the rate indications, the Board was then obliged to conclude that the proposed rates filed by Allstate and Pembridge were just and reasonable in the circumstances. [91] If the above assertion were true, there would be no point in having the Board review any applications. The system would revert to a simple “file-and-use” regime which, we were advised, was in place before these legislative reforms were passed in 2003. Taking the appellants’ approach here, there would be no regulatory review of the reasonableness or justness or fairness of the rates which the insurance companies sought to apply. The Board would have a very limited purpose, doing little more than “rubber stamping” the material put forward by insurers. Such a limited role could hardly be seen as regulating the insurance industry. Nor in my respectful view, could such a restricted function have been the intention of the legislature. [92] In her reasons, Oland, J.A. emphasized that portion of the Board’s decision (at ¶ 27) where, after citing the actuarial evidence presented by the appellants and Mercer, it said that it was then placed in the position where it had to “consider which of the two different approaches to a specific factor is preferred”. In this, my colleague found that the Board had erred in law because they “failed” to address the essential question before it under s. 155I(1)(a). I respectfully disagree, for the reasons already advanced. The Board’s decisions are replete with references by the Board to the issue it was obliged to address, that is to decide whether the applications advanced by Allstate and Pembridge were just and reasonable under the Act. Given its broad mandate and statutory authority, and the fact that there were two distinct actuarial perspectives before it, the Board was certainly empowered to decide, as a factor in its collective reasoning, which of the two it “preferred”. Such an observation, in the context of its whole decision, is in my respectful view, hardly a fatal error warranting our intervention. [93] Finally, I see no merit to the appellants’ complaint that the manner by which the Board conducted these hearings were contrary to the rules of natural justice. Since this is a matter of procedural fairness, it does not involve any deferential standard of review. See for example Moreau-Bérubé c. Noveau-Brunswick, [2002] 1 S.C.R. 249 at ¶ 74 per Arbour, J.; Creager v. Nova Scotia (Provincial Dental Board), 2005 NSCA 9 at ¶ 24, and the cases cited therein. I think there are two short answers to the appellants’ assertions. First, the Board was entitled to solicit the advice of Mr. Cotnam, a member of its own staff. As the Board’s own Senior Rate Analyst, Mr. Cotnam was in a position to assist the Board in assessing the actuarial reports. It seems to me that the memoranda he prepared were nothing more than work product, and certainly within the scope of material the Board could solicit in attempting to understand the various actuarial proposals and supporting documentation which formed part of this record. [94] Even if such material ought to have been provided to the appellants when first prepared, I see no prejudice to the appellants’ position. At the end of the day they were well aware of the issues that needed to be addressed and the points advanced by Mercer to be countered or refuted if so advised, and they were given full opportunity to do so. [95] Finally, I see no prejudice to the appellants with respect to their submissions that they were unfairly treated by having an “onus” placed on them to “prove anything”. In first instance, before the Initial Panels, one would logically expect that the appellants, as applicants, would face a burden of persuasion in demonstrating to the satisfaction of the panel that its proposed rates were just and reasonable. In the real world someone has to produce evidence and put forward a case. It would seem logical that the appellants as applicants would accept the task of satisfying the Board that its proposal met the statutory requirements. [96] Having been unsuccessful at the first panel level, Allstate and Pembridge, then - in terms of elementary procedure - found themselves in the role of appellants, with the procedural and evidentiary obligations such a position typically engages. I see nothing inappropriate in the Board’s expectation that the appellants had the burden of persuading the Appeal Panels that the decisions in first instance ought to be allowed. I fundamentally disagree with my colleague when she says the Board assumed or acquired an evidentiary and statutory burden of justifying its refusal to approve the impugned applications. [97] For all of these reasons I would dismiss the appeal. [98] I do agree with my colleague, however, that this court has neither the time nor the resources to decide whether these applications meet the criteria under s. 155I(1)(a). In light of the specialized and technical evidence which necessarily forms part of the record, the Board is best suited to make such a determination. Saunders, J.A