1 THE QUEEN'S BENCH WINNIPEG CENTRE

BETWEEN: ESTHER JOYCE GRANT (on her own behalf and in her capacity as administrator of the Estate of BRIAN LLOYD SINCLAIR), Plaintiff, - and WINNIPEG REGIONAL HEALTH AUTHORITY, THE GOVERNMENT OF MANITOBA, BROCK WRIGHT, HEIDI GRAHAM, SUSAN ALCOCK, CATHY JANKE, JAN KOZUBAL, ELIZABETH FRANKLIN, WENDY KRONGOLD, ROBERT MALO, HUGO TORRES-CERECEDA, HONORA KEARNEY, VAL HIEBERT, TODD TORFASON, LORI STEVENS, JORDAN LOECHNER, JANE DOE and JOHN DOE, Defendants. MOTION BRIEF OF THE DEFENDANTS WINNIPEG REGIONAL HEALTH AUTHORITY, WRIGHT, GRAHAM ALCOCK, JANKE, KOZUBAL, FRANKLIN, KRONGOLD, MALO, TORRES-CERECEDA, KEARNEY, TORFASON, STEVENS and LOECHNER TABLE OF CONTENTS 1. 2. 3. 4. 5. 6. DOCUMENTS TO BE REFERRED TO AUTHORITIES TO BE REFERRED TO INTRODUCTION PRINCIPLES APPLICABLE TO A MOTION TO STRIKE ISSUES POINTS TO BE ARGUED PAGE NOS 2 2 3-4 5 6 7 - 14

DOCUMENTS TO BE REFERRED TO 1. 2. 3. 4. 5. The Amended Statement of Claim filed on September 27, 2010. Affidavit of Esther Joyce Grant sworn on August 25, 2010. Request for Particulars dated October 6, 2010. Particulars dated October 18, 2010. Notice of Motion filed on November 18, 2010.

AUTHORITIES TO BE REFERRED TO TAB NOS. Manitoba Queens Bench Rule 25.11. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. Basaraba v. The Government of Manitoba (2008) 227 Man. R. (2d) 87 (Q.B. Master). Cooper Stevenson, Personal Injury Damages in Canada. The Fatal Accidents Act CCSM c.F50. The Trustee Act, CCSM, c.T160, s. 53(1). The Canadian Charter of Rights and Freedoms, Sections 7, 12, 15 and 24. Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429 Giacomelli Estate v. Canada (2008) ONCA 346. Stoffman v. Vancouver General Hospital [1990] 3 S.C.R. 483. Jaman Estate v. Hussain et al (1995) 102 Man.R. (2d) 113 (Man. C.A.) Blacks Law Dictionary 11 12 10 8 9 7 3 4 5 6 1 2

3 INTRODUCTION

The plaintiff Esther Joyce Grant is the sister of the late Brian Sinclair and the administrator of his estate. She brings the within action: (1) as the personal representative of the deceased - to recover for the estate the damages alleged to have been suffered by Brian Sinclair prior to his death as a result of delay in his treatment at the Health Sciences Centre; and (2) on behalf of the surviving family members - to recover their losses sustained after and as a result of Brian Sinclairs death. At common law the death of a party extinguishes any possibility of litigation: actio personalis moritur cum persona. A personal action only survives the death of a claimant by virtue of and to the extent provided by legislation. Manitobas survival legislation is The Trustee Act and in particular section 53(1) which permits a personal representative to commence an action in tort (other than for defamation and other excluded causes of action) for losses incurred by the deceased up to the moment of death. The damages recoverable are governed and limited by that legislation. Cooper Stephenson, Personal Injury Damages in Canada [TAB 4] At common law there is no cause of action for wrongful death. The Fatal Accidents Act of Manitoba grants certain surviving family members a right to sue for loss of care, guidance and companionship and, if it can be established, certain pecuniary loss. Jaman Estate v. Hussain et al [TAB 11]

4 This motion does not challenge the plaintiffs right to advance the actions which survive death nor the Fatal Accidents claim described in the previous paragraph. However, this motion does challenge certain additional claims found in the Amended Statement of Claim which these defendants say are ill-founded at law. Specifically the plaintiff estate claims declaratory relief and/or damages for alleged breaches of Brian Sinclairs rights under the Canadian Charter of Rights and Freedoms (the Charter) prior to his death. It is the position of these defendants that an estate has no legal right to assert such a claim. Additionally the estate claims against the defendants Winnipeg Regional Health Authority (WRHA), Brock Wright and Heidi Graham damages for alleged breaches of the privacy of the late Brian Sinclair. This claim centers on information allegedly disclosed to the public after Brian Sinclairs death. Again the law is clear that an estate possesses no viable cause of action to recover damages for breach of a deceased persons privacy. Finally, the plaintiff claims damages for the legal fees and disbursements incurred or to be incurred in connection with the Inquest into the death of Brian Sinclair. These defendants contend that such expenses do not constitute legally recoverable pecuniary loss.

5 PRINCIPLES APPLICABLE TO A MOTION TO STRIKE

Where a Statement of Claim or a portion thereof fails to disclose a reasonable cause of action or constitutes an abuse of the process of the Court the Court may on motion strike out all or part of the pleading. Queens Bench Rule 25.11(c) and (d) [TAB 1] The test for determining a motion to strike was articulated by Wilson J. in Hunt v. Carey Canada Inc. as follows: Assuming that the facts as stated in the statement of claim can be proved, is it plain and obvious that the plaintiffs Statement of Claim discloses no reasonable cause of action? Hunt v. Carey Canada Inc. [TAB 2]

What constitutes a reasonable cause of action has been described by the English Court of Appeal as follows:

a factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person. Basaraba v. Manitoba [TAB 3]

6 ISSUES The issues to be determined are: 1. Does the estate have a reasonable cause of action for declaratory relief and/or damages for alleged breaches of the late Brian Sinclairs Charter rights? 2. Does the estate have a reasonable cause of action for damages for an alleged breach of the late Brian Sinclairs privacy? 3. Does the estate have a reasonable cause of action for the recovery of legal fees which it is alleged will be incurred by members of Brian Sinclairs family in connection with the Inquest?

POINTS TO BE ARGUED 1. The estate has no legal right to seek declaratory relief and/or damages for alleged breaches of the Charter rights of the late Brian Sinclair. [paragraphs 1a, 1b(1), 1b(4), 4, 17, 78 93, 104, 107 and 112a]. By the within action the plaintiff claims, inter alia: (a) a declaration that Brian Sinclairs right to life and security of the person, his right not to be subjected to cruel and unusual treatment, and his right to equal treatment without discrimination, as guaranteed by the Charter, were breached by the defendants; and damages under Section 24(1) of the Charter for those breaches.

(b)

The estate has no right at law to advance such claims. The allegations are that when Brian Sinclair attended the emergency department of the Health Sciences Centre he was in need of medical treatment that was not provided within a reasonable time frame as a result of which he died. It is alleged that this failure constituted a breach of his Charter rights. Section 24 of the Charter provides a remedy to an individual whose Charter rights have been infringed, but the jurisprudence is clear that the Charter rights of a deceased person cannot be enforced by his estate because those rights are personal and terminate with the death of the individual.

8 In Canada (A.G.) v. Hislop the Supreme Court of Canada considered whether an estate has standing to pursue relief under Section 15 of the Charter and determined that it does not: we conclude that estates do not have standing to commence section 15.1 Charter claims. In this sense it may be said that the Section 15 rights die with the individual. Canada (A.G.) v. Hislop [TAB 8, at paragraph 73] Similarly in Giacomelli Estate v. Canada the Ontario Court of Appeal applied the reasoning in Hislop to preclude an estate from pursuing a claim under Section 7 of the Charter. The Court held that as a matter of law Charter claims do not survive death. Giacomelli Estate v. Canada [TAB 9, paragraphs 16 - 20] It is therefore submitted that those portions of the Amended Statement of Claim herein which purport to claim relief under the Charter for alleged breaches of Brian Sinclairs rights ought to be struck out as disclosing no reasonable cause of action and/or as an abuse of the process of the Court. Alternatively these defendants contend that the matters

complained of in the Amended Statement of Claim do not attract the reach of the Charter and therefore fail to disclose a reasonable cause of action and ought to be struck out on that basis as well.

The Charter applies only to government and is confined to governmental action:

Application of Charter

32.(1) This Charter applies: (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

(b)

In Stoffman v. Vancouver General Hospital the Supreme Court of Canada held that, even though a hospital is a creature of statute and healthcare is an important part of the mandate of the provincial government, a hospitals day to day activities do not attract the reach of the Charter. Stoffman v. Vancouver General Hospital. [TAB 10] Unless the impugned conduct is the implementation of a government policy or law (as in Eldridge v. B.C.) the hospital does not form part of the government within the meaning of Section 32. Moreover, in order to constitute a cause of action under Section 7, 12 or 15 of the Charter, the alleged violation would have to implicate a law, government policy or principal of fundamental justice. The claim against the WRHA arises directly out of the daily operations of the Health Sciences Centre and in particular the failure to ensure timely delivery of health care to the deceased. Such activity is not governmental and is therefore outside of the scope of Charter review.

The claim against the WRHA under the Charter ought therefore to

10 be struck out.

2. The estate has no legal right to claim damages for the alleged breach of the late Brian Sinclairs privacy. [Paragraphs 1(b)(v), 7, 21, 22, 50, 51, 52, 53, 54, 55, 56, 94 to 102, 106, 111, 112(e), 112(f) and 112(g)].

The allegations are that after Brian Sinclairs death the WRHA, principally by its representatives Brock Wright and Heidi Graham, disclosed information about Brian Sinclairs attendance at the Health Sciences Centre. The plaintiff claims that this information, particularly the fact that Mr. Sinclair had not approached the triage desk, was inaccurate, misleading and a breach of Brian Sinclairs privacy. All of the complaints in this regard are of disclosures that occurred subsequent to Brian Sinclairs death. Accordingly this claim is not one for damages sustained by Brian Sinclair. Stated another way, this claim is brought by the estate but not under the relevant survival legislation which only permits estates to pursue those rights vested in the deceased immediately before his death. The plaintiff alleges that the disclosures complained of caused damage to Mr. Sinclairs surviving family members but they are not parties to the action nor would they have any legal right of recovery. The claim is therefore one for damages allegedly sustained by the estate, but there is no basis in law for such a claim. In Hislop, the Supreme Court of Canada held that estates are artificial entities, not individuals, and are not capable of having their dignity infringed. Justices Lebel and Rothstein,

11 for the majority, made the following observations: an estate is just a collection of assets and liabilities of a person who has died. It is not an individual and it has no dignity that may be infringed. It is submitted that the reasoning in Hislop precludes an estate, including the within plaintiff, from claiming damages for the violation of a deceaseds privacy. The allegations in the Amended Statement of Claim in this regard do not constitute a reasonable cause of action and accordingly those portions of the Amended Statement of Claim that seek damages against WRHA for breach of privacy ought to be struck out. Similarly the Amended Statement of Claim as against the defendants Brock Wright and Heidi Graham ought to be struck out in its entirety as the case against those defendants is based entirely upon the impugned allegations.

3. The estate has no legal right to claim as damages the legal fees and disbursements to be incurred by family members in connection with the Inquest. [Paragraph 1(b)(iv), 8, 60, 61, 62, 107 and 108]. The plaintiff claims damages for the Brian Sinclair Estate and Familys legal fees and disbursements in relation to the Inquest into the Death of Brian Sinclair. These defendants submit that the plaintiff has no legal right to such an award. It is to be remembered that there is, at common law, no cause of action for wrongful death. Accordingly this claim - being one for damages incurred subsequent to Brian Sinclairs death - is based entirely upon the Fatal Accidents Act. In Jaman, the Manitoba Court of Appeal observed that these

12 claims are derivative. The Fatal Accidents Act, sometimes still referred to as Lord Campbells Act which was first enacted in England in 1846 and which although amended from time to time remains substantially the same in Manitoba today, creates rights of action in an estate and in certain beneficiaries of a deceased which had previously not existed. The Act brought to an end the old concept that any right of action dies with the person (action personalis moritur cum persona). In cases of wrongfully caused death, some limited rights of action for an estate and for certain designated beneficiaries of the deceased person which had previously not existed were conferred. Jaman Estate v. Hussain [TAB 11, paragraph 7] As stated earlier, the Fatal Accidents Act of Manitoba provides survivors with a right of recovery for certain pecuniary losses: Amount of damages 3(2) Subject to subsection (3), in every such action such damages as are proportional to the pecuniary loss resulting from the death shall be awarded to the persons respectively for whose benefit the action is brought. Fatal Accidents Act [TAB 5] Pecuniary loss is defined by Blacks Law Dictionary as follows: A loss of money, or of something by which money or something of money value may be acquired. As applied to a dependents loss from death pecuniary loss means the reasonable expectation of pecuniary benefit from the continued life of the deceased: such includes loss of services, training, nurture, education, guidance and society. Pecuniary loss within Wrongful Death Act means what the life of decedent was worth, in a pecuniary sense, to the survivors. Blacks Law Dictionary [TAB 12]

13

Accordingly our courts assess damages for pecuniary loss resulting from death solely with reference to the financial contribution the deceased would have made to the family but for his or her untimely death. The most common examples are loss of support and loss of homemaking services. Legal fees to be incurred by family members who seek representation at the Inquest are not, it is submitted, pecuniary losses within the meaning of the statute and are therefore not recoverable at law. The plaintiff estate therefore has no reasonable cause of action for recovery of the expenses sought and this portion of the claim ought to be struck out on that basis. All of which is respectfully submitted.

December 21, 2010

GREEN & DIXON Per: MICHAEL T. GREEN Green & Dixon Barristers and Solicitors 1120-444 St. Mary Avenue Winnipeg, MB R3C 3T1 Lawyers for the moving parties.

TO:

Poster & Trachtenberg Barristers and Solicitors 710 491 Portage Avenue Winnipeg, MB R3B 2E4 Murray N. Trachenberg.

14

Zbogar Advocate 51 Crossovers Street Toronto ON M4E 3X2 Vilko Zbogar Lawyers for the plaintiff.