File No. CI 10-01-68315 BETWEEN: THE QUEEN'S BENCH WINNIPEG
CENTRE ESTHER JOYCE GRANT (on her own behalf and in her capacity as
administrator of the Estate of BRIAN LLOYD SINCLAIR) - 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 Plaintiff
Defendants RE-AMENDED STATEMENT OF CLAIM ZBOGAR ADVOCATE 51
Crossovers St. Toronto Ontario CanadaM4E 3X2 Vilko Zbogar
T.416-855-6710 F.416-855-6709 [email protected] POSNER
& TRACHTENBERG 710-491 Portage Avenue Winnipeg Manitoba Canada
R3B 2E4 Murray N. Trachtenberg T: (204) 940-9602 F: (204) 944-8878
[email protected] Counsel for the Plaintiff File No. CI
10-01-68315 BETWEEN: THE QUEEN'S BENCH Winnipeg Centre ESTHER JOYCE
GRANT (on her own behalf and in her capacity as administrator of
the Estate of BRIAN LLOYD SINCLAIR) - 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 Plaintiff Defendants RE-AMENDEDSTATEMENT OF CLAIM TO THE
DEFENDANTS A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the
Plaintiff. The claim made against you is set out in the following
pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or a Manitoba
lawyer acting for you must prepare a statement of defence in Form
18A prescribed by the Queen's Bench Rules, serve it on the
Plaintiffs lawyer or, where the Plaintiff does not have a lawyer,
serve it on the Plaintiff, and file it in this court office, WITHIN
20 DA YS after this statement of claim is served on you, if you are
served in Manitoba. If you are served in another province or
territory of Canada or in the United States of America, the period
for serving and filing your statement of defence is 40 days. If you
are served , outside ;Ud the U. nited States of the period is 60
aYYJ '.. fJ/ -hi A "mendedthls_61 1 _Cc,yof Amend.d_Lfu .. ,
Requisition. 20Jl..Jf1. S h l./ { ( "" t. RANVItL'E \. " . " V Q VI
(J C f\ 0 DEPUTY REGISTRAR REGISTRAft .-,-- .. --- -- "-fORMANITOBA
2 IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAYBE GIVEN
AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
September 15,2010 Issued by: "R. Righetti" Deputy Registrar TO: AND
TO: AND TO: AND TO: AND TO: AND TO: AND TO: WINNIPEG REGIONAL
HEALTH AUTHORITY 4th Floor - 650 Main Street Winnipeg, Manitoba R3B
lE2 THE GOVERNMENT OF MANITOBA clo Attomey-General 104 Legislative
Building - 450 Broadway Winnipeg, Manitoba R3C OV8 BROCK WRIGHT clo
WINNIPEG REGIONAL HEALTH AUTHORITY 4th Floor - 650 Main Street
Winnipeg, Manitoba R3B 1E2 HEIDI GRAHAM clo WINNIPEG REGIONAL
HEALTH AUTHORITY 4th Floor - 650 Main Street Winnipeg, Manitoba R3B
1E2 SUSAN ALCOCK c/o WINNIPEG REGIONAL HEALTH AUTHORITY 4th Floor -
650 Main Street Winnipeg, Manitoba R3B 1E2 CATHY JANKE clo WINNIPEG
REGIONAL HEALTH AUTHORITY 4th Floor - 650 Main Street Winnipeg,
Manitoba R3B 1E2 JAN KOZUBAL c/o WINNIPEG REGIONAL HEALTH AUTHORITY
4th Floor - 650 Main Street Winnipeg, Manitoba R3B 1 E2 Court of
Queen's Bench for Manitoba AND TO: AND TO: AND TO: AND TO: AND TO:
AND TO: AND TO: AND TO: AND TO: 3 ELIZABETH FRANKLIN c/o WINNIPEG
REGIONAL HEALTH AUTHORITY 4th Floor - 650 Main Street Winnipeg,
Manitoba R3B IE2 WENDY KRONGOLD c/o WINNIPEG REGIONAL HEALTH
AUTHORITY 4th Floor - 650 Main Street Winnipeg, Manitoba R3B IE2
ROBERT MALO c/o WINNIPEG REGIONAL HEALTH AUTHORITY 4th Floor - 650
Main Street Winnipeg, Manitoba R3B IE2 HUGO TORRES-CERECEDA c/o
WINNIPEG REGIONAL HEALTH AUTHORITY 4th Floor - 650 Main Street
Winnipeg, Manitoba R3B IE2 HONORA KEARNEY c/o WINNIPEG REGIONAL
HEALTH AUTHORITY 4th Floor - 650 Main Street Winnipeg, Manitoba R3B
IE2 VAL HIEBERT c/o WINNIPEG REGIONAL HEALTH AUTHORITY 4th Floor -
650 Main Street Winnipeg, Manitoba R3B IE2 TODD TORF ASON c/o
WINNIPEG REGIONAL HEALTH AUTHORITY 4th Floor - 650 Main Street
Winnipeg, Manitoba R3B IE2 LORI STEVENS c/o WINNIPEG REGIONAL
HEALTH AUTHORITY 4th Floor - 650 Main Street Winnipeg, Manitoba R3B
IE2 JORDAN LOECHNER c/o WINNIPEG REGIONAL HEALTH AUTHORITY 4th
Floor - 650 Main Street Winnipeg, Manitoba R3B IE2 AND TO: AND TO:
AND TO: AND TO: 4 JANE DOE c/o WINNIPEG REGIONAL HEALTH AUTHORITY
4th Floor - 650 Main Street Winnipeg, Manitoba R3B IE2 JOHN DOE c/o
WINNIPEG REGIONAL HEALTH AUTHORITY 4th Floor - 650 Main Street
Winnipeg, Manitoba R3B lE2 GREEN & DIXON 1120-44 St. Mary
Avenue Winnipeg, Manitoba R3C 3Tl Attention: Michael T. Green
MANITOBA JUSTICE Civil Legal Services (S.O.A.) 7th Floor, 406
Broadway Winnipeg, Manitoba R3C 3L6 Attention: W. Glenn McFetridge
] . The Plaintiff claims: 5 CLAIM a. Against the Winnipeg Regional
Health Authm:ityf'WRHA"), a declaration that Brian Sinclair's right
to life and security of the person, his right to not be subjected
to any cruel and unusual treatment, and his right to equaJ
treatment without discrimination, which are guaranteed by the
Canadian Charter of Rights and Freedoms, were breached by the WBHA;
b. 8,ainst the Government of Manitoba;-.a declaration that Brian
Sinclair's right to life and security of the person and his right
to equal treatment without discrimination, which are guaranteed by
the Canadian Charter of Rights and Freedoms, were breached lJY the
Government of Manitoba; c. General, aggravated, special, and
Charter damages of $1,100,000, including: 1. As against the
defendants WRHA, the. Government of Manitoba, Susan Alcock, Cillhy
Janke, Jan Franklin, Wendy Krongold, Robert Malo, Hugo
Torres-CereceilllJ-Ionora Torfason, Lori Stevens, Jordan Doe and
John Doe...jQjntly and severally, general and aggravated damages in
the amount of $340,000 for civil tort claims that Brian Sinclair
had prior to his death; 11. As against the defendants WRHA and the
GQvernment of Manitoba jointly and severallv, damages under s.
24(1) of the Canadian Charter o.fRights and 6 Freedoms in the
amount of $340,000 for constitutional tort claims that Brian
Sinclair had prior to his death; Ill. As _against the defendants
WRHA. the Government of ManitcllliSusan Alcock. Cathy Janke1 Jan
Robert Malo, I-IuM Torres-Cereceda. Honora Kearney. Val Torfason,
Lori Stevens, Jordan Loechner, Jane Doe and Jolm QoejQintly and
severally. damages under s. 3.1(2) of the Fatal Accidents Act,
C.C.S.M. c. F50 in the amount of $110,000 for the loss of guidance,
care and companionship arising from Brian Sinclair's wrongful
death; IV. As against each of the and special damages and/or
damages under s. 24(1) of the Charter in the amount of$300,000 for
the Brian Sinclair Estate and Family's legal fees and disbursements
in relation to the Inquest into the Death of Brian Sinclair; v. As
against the defendants WRI&Brock=Wrighl ... Heidi Graham. Jane
Doe and John Doe jointly and seyerally. general and aggravated
damages in the amount of $10,000 for violation of Brian Sinclair's
privacy and patient confidentiality and for negligent use of Brian
Sinclair's personal medical information; d. ASJ1gainst each of the
defendantsjointJ"ywd severally, punitive or exemplary damages in
the amount of $500,000; e. An award of3% on account of loss of
opportunity to invest non-pecuniary damages; 7 f. Pre-judgment
interest and post-judgment interest pursuant to ss. 80 and 84 of
The Court o/Queen 's Bench Act, C.C.S.M. c. C280; g. Costs on a
solicitor and own client basis; and h. Such further or other relief
as this Honourable Court may deem just. SUMMARY OF CLAIM 2. On
September 19,2008, Brian Sinclair, an indigent, physically and
cognitively disabled, Aboriginal, vulnerable man, attended the
emergency department of the Winnipeg Health Sciences Centre (HSC).
He complained of abdominal pain, a catheter problem, and a lack of
any urinary output for over 24 hours. Hospital staff directed him
to wait, and so he did. He sat in his wheelchair in the emergency
waiting room for thirty-four hours. 3. For thirty-four hours,
hospital staff callously, recklessly or negligently ignored Brian
Sinclair, even as he sat in the hospital waiting room in distress,
vomiting, and dying. They left him to suffer in agony, and gave him
no care, treatment, assessment, attention, or necessaries of life.
As a result, he died. 4. The kind of treatment that Brian Sinclair
received at the HSC was cruel and discriminatory. 5. Brian
Sinclair's suffering and death were entirely preventable. His
immediate medical conditions were readily treatable, but the
medical institutions and professionals that Brian Sinclair relied
on for care failed in their duty to provide him with proper and
timely care. 8 6. This preventable tragedy became public after a
fellow patient in the HSC emergency waiting room told the media
about his experience of approaching nurses and security staff about
the condition ofthe double-amputee in the wheelchair (Brian
Sinclair), all of whom failed to act on his concerns or said they
were too busy or that there would be too much paperwork. The story
quickly gained public notoriety. 7. As part of its efforts to
control the story, cover up certain facts, deflect attention from
its own wrongdoing, and mitigate the burgeoning political
embarrassment that the scandal was causing for Winnipeg Regional
Health Authority (WRHA) and the Government of Manitoba, WRHA,
through its officer Brock Wright and others, falsely asserted to
the media that Brian Sinclair never approached the triage desk and
never made medical staff aware of his need for assistance. They
implied that it was Brian Sinclair's own fault for being left to
die for thirty-four hours in the emergency waiting room of a major
Canadian hospital. By using his personal medical information in
this way, they breached Brian Sinclair's rights to privacy and
patient confidentiality. 8. Brian Sinclair's preventable death has
become the subject of an inquest. The calling of this inquest was a
foreseeable result of the Defendants' gross negligence or
recklessness. The court has deemed the Estate and Family of Brian
Sinclair to be essential parties to the inquest with a right to
legal representation. Despite their liability for Brian Sinclair's
suffering and death, the Government of Manitoba and WRHA have
repeatedly refused to provide adequate or fair funding to ensure
the innocent victims' meaningful participation in the inquest. 9
THE PARTIES 9. The Plaintiff, Esther Joyce Grant, resides in the
City of Richmond, British Columbia. She is Brian Sinclair's sister.
10. The Plaintiff, Esther Joyce Grant, is the administrator of the
Estate of Brian Sinclair. The Court of Queen's Bench granted the
administration order on February 25, 2009. 11. The Plaintiff,
Esther Joyce Grant, is the personal representative of the deceased,
Brian Sinclair, for the purposes ofs.53(1) of the Trustee Act,
C.C.S.M. c. 1'160. 12. Pursuant to s.3 of the Fatal Accidents Act,
s. 53(1) of the Trustee Act, and Queen's Bench Rule 9.01 (l),
Esther Joyce Grant brings this claim on behalf of all of the
beneficiaries of Brian Sinclair's estate, namely, Brian Sinclair's
mother Veronique Goosehead and his siblings Esther Joyce Grant,
Marianne Sinclair, Dianne Sinclair, Bradley Sinclair, Russell
Sinclair, and George Guimond Goosehead. Particulars of the
beneficiaries' addresses, and occupations are included in the
affidavit of Esther Joyce Grant filed with the statement of claim.
13. The Defendant, the Government of Manitoba, is the entity
against which proceedings against the Crown in right of the
Province of Manitoba shall be brought, pursuant to section 10 of
the Proceedings Against the Crown Act; C.C.S.M. c. P140. 10 14. The
Government of Manitoba is responsible at law, under the
Constitution, and as a fundamental matter of Canadian social policy
to deliver health care to the public. It has a monopoly over
delivery and administration of hospital-based emergency healthcare
in Manitoba and is responsible and accountable for emergency
healthcare delivered by Manitoba hospitals. 15. The Defendant, the
Winnipeg Regional Health Authority ("WRHA"), is a corporation
established pursuant to the Regional Health Authorities Act,
C.C.S.M. c. R34 and the Regulations thereunder. 16. WRHA operates a
number of health care facilities in Winnipeg, including the Health
Sciences Centre ("HSC") (a large downtown hospital) and the Health
Action Centre (a community health clinic). 17. WRHA is responsible
for administering health services in a manner that complies, inter
alia, with the Canadian Charter of Rights and Freedoms and with s.
7 of the Canada Health Act, R.S.C. 1985, c. C-6 which sets out the
criteria of inter alia, comprehensiveness, universality and
accessibility in relation to the operation of the Manitoba Health
Services Insurance Plan. 18. At all relevant times, WRHA was in a
fiduciary relationship with Brian Sinclair, who was a highly
vulnerable, disabled and sick Aboriginal patient in its care and
who was completely dependent on its care. As such, WRHA owed Brian
Sinclair special duties of care, 11 confidentiality, honesty, and
respect both before and after his death, in addition to other
duties prescribed by statute or common law. 19. At all relevant
times, WRHA owed a duty of care to Brian Sinclair to reasonably
safeguard and preserve his health by providing him with proper and
timely emergency medical treatment and owed him a duty of care to
not exacerbate the risk of harm or to injure him by failing to
provide him with proper and timely medical treatment. 20. In
addition to any direct liability that WRHA has for failing in its
duty of care to Brian Sinclair, WRHA is vicariously liable for the
torts committed by WRHA and HSC officers and employees who were
acting in the course of and within the scope of their employment.
In particular, WRHA is vicariously liable for the torts committed
by each of the individual Defendants named in this action and for
any torts committed by other WRHA officers and employees whose
identities are not currently known to the Plaintiff. 21. The
Defendant, Brock Wright, resides in the City of Winnipeg and was,
at all relevant times, the Vice President and Chief Medical Officer
of WRHA and the HSC Chief Operating Officer. 22. The Defendant,
Heidi Graham, resides in the City of Winnipeg and was at all
relevant times the Media Relations Director for WRHA. In that
capacity she had responsibility for WRHA's public messaging
concerning the Brian Sinclair matter. 12 23. The other individual
Defendants reside in the city of Winnipeg and are medical staff
employed by WRHA. These Defendants, together with the Defendants
Jane Doe and John Doe, are referred to collectively herein as "HSC
ER Medical Staff." During some portion of the 34 hours that Brian
Sinclair was in attendance at the HSC between September 19 and 21,
2008, these named individuals were working in the HSC adult
emergency room and had responsibility for Brian Sinclair's care.
Their positions, at the relevant times, were as follows: Name
Position Sept. 19 Sept 19- Sept. Sept 20-day 20 night 20 day 21
night Susan Alcock Clinical Resource Nurse ./ ./ Cathy Janke
Clinical Resource Nurse ./ ./ Jan Kozubal Triage Nurse ./ Elizabeth
Franklin Triage Nurse ./ Wendy Krongold Triage Nurse ./ Robert Malo
Triage Nurse ./ ./ Hugo Torres-Cereceda Triage Nurse ./ Honora
Kearney Triage Nurse ./ Val Hiebert Triage Nurse ./ Todd Torfason
Reassessment Nurse ./ Lori Stevens Reassessment Nurse ./ Jordan
Loechner Unit Assistant at Triage ./ ./ 24. Each of the HSC ER
Medical Staff Defendants, except for the Defendant Jordan Loechner,
was a Registered Nurse at all relevant times. The Defendant Jordan
Loechner was a medically trained triage aide acting under the
supervision of one or more Registered Nurses. 25. The Defendants
Jane Doe and John Doe are other WRHA or HSC officers or employees
who observed Brian Sinclair in the HSC ER waiting room during the
relevant times, or who had any responsibility for his care but
failed to provide that care or to take steps to ensure 13 that
others provided that care, or who breached Brian Sinclair's rights
to privacy and confidentiality. Their identities are presently
unknown to the Plaintiff. 26. Each of the HSC ER Medical Staff owed
a duty of care to Brian Sinclair to reasonably safeguard and
preserve his health by providing him with proper and timely
emergency medical care or, alternatively, taking all reasonable
actions to ensure that other HSC ER Medical Staff provided such
emergency medical treatment. They owed him a duty of care to not
exacerbate the risk of harm or to injure him by failing to provide
or arrange for the provision of proper and timely emergency medical
treatment. MATERIAL FACTS 27. Brian Sinclair, born June 24, 1963,
was a marginalized and vulnerable Aboriginal man. He was very poor
and transient, confined to a wheelchair after having had both legs
amputated; cognitively impaired; recovering from substance
addiction; speech-impaired; and afflicted by chronic illnesses
including a seizure disorder, a kidney ailment, and a neurogenic
bladder. 28. Despite his many life challenges and vulnerabilities,
Brian Sinclair was known as a considerate person, a joyous spirit,
and an individual filled with good humour. 29. Brian Sinclair was a
human being and was entitled to be treated with respect and
dignity. 14 30. He was not, however, fully capable of administering
his own affairs or advocating for himself medically or otherwise.
31. On September 19,2008 at about 2:15 p.m., Brian Sinclair
attended a community health clinic in Winnipeg (namely, the Health
Action Centre, which is a WRHA facility) complaining of abdominal
pain, no urinary output in the previous 24 hours, and possible
problems with his indwelling Foley catheter. 32. Dr. Mamie Waters
at the Health Action Centre assessed Brian Sinclair. She determined
that . his catheter was likely obstructed, but she was unable to
provide the treatment that he required at the clinic. 33. Dr.
Waters wrote a letter setting out the treatment that she believed
that Brian Sinclair required, and directed him to immediately
attend the Emergency Department of the Winnipeg Health Sciences
Centre (HSC) for further assessment, assistance and treatment. 34.
Staff at the Health Action Centre arranged for a taxi van to
transport Mr. Sinclair directly to the adult Emergency Department
of the HSC. 35. Upon arrival at the HSC adult Emergency Department,
at about 2:53 p.m. on September 19, 2008, Brian Sinclair
immediately approached the triage area. 15 36. Triage nurses, other
medical staff, and security staff on shift at the HSC adult
Emergency Department at that time observed Mr. Sinclair's arrival.
37. After Brian Sinclair approached the triage area in his
wheelchair, Jordan Loechner, a uniformed hospital employee working
in the triage area, spoke with Mr. Sinclair, made some notes on a
clipboard, and then directed him to wait in the waiting room. Mr.
Sinclair complied. 38. Brian Sinclair remained seated in his
wheelchair in the HSC ER waiting room for thirty-four hours, in
considerable pain and discomfort, vomiting, and slowly dying. 39.
Throughout that thirty-four hour period, WRHA and HSC ER Medical
Staff breached their duty of care owed to Brian Sinclair in failing
to give Brian Sinclair any attention, assessment, treatment, care,
or necessaries of life. Brian Sinclair was given no food, no water,
no pain medication, no antibiotics, no medical assessment, no
catheter change, no relief from his inability to urinate given his
blocked catheter, no means to contact a family member, and no
comfort or companionship. 40. It was readily apparent to anyone who
observed Brian Sinclair during this period that he was in medical
distress and that his condition was progressively worsening. 41. On
multiple occasions during the thirty-four hour period that Brian
Sinclair sat in the HSC ER waiting room, a number of security staff
and other patients or visitors specifically 16 brought Brian
Sinclair's dire condition to the attention ofHSC ER Medical
Staffand attempted to get HSC ER Medical Staff to attend to Mr.
Sinclair. 42. Despite the attempted interventions of members of the
public and security staff on Brian Sinclair's behalf, HSC ER
Medical Staff, in breach of the duty of care owed to Brian
Sinclair, refused or failed to attend to him or to interact with
him in any way whatsoever, to arrange for others to do so, or to
provide him with the necessary emergency medical treatment and
other necessities of life that he required. 43. HSC ER Medical
Staff knowingly ignored Brian Sinclair with callous and reckless
disregard for his well-being and his dignity as a patient and
fellow human being. 44. On September 21,2008, shortly after
midnight, another patient in the HSC ER waiting room observed that
Mr. Sinclair appeared not to be breathing and alerted security
staff to the fact that he might be dead. 45. Finally, Mr. Sinclair
received some medical attention. He was wheeled to the HSC ER
treatment area where HSC emergency medical staff attempted
resuscitation, but it was much too late. Brian Sinclair was
pronounced dead at 12:51 a.m. on Sunday, September 21,2008. 46. At
about that time, hospital staff recovered from Mr. Sinclair's
pocket the note from Dr. Waters, dated September 19,2008,
describing the treatment that Brian Sinclair required. 17 47. The
medical cause of Brian Sinclair's death was "acute peritonitis due
to severe acute cystitis due to neurogenic bladder," or, in lay
tem1s, an infection in the bladder area. 48. This condition was
treatable, and Brian Sinclair would have lived if he had been
provided with prompt and appropriate care at the Health Sciences
Centre. He had a blocked catheter and an infection. To address
those medical conditions, all that he needed was a timely catheter
change and a course of antibiotics. 49. Following Brian Sinclair's
death, a fellow patient at the HSC Emergency Department who had
tried in vain to get medical and security staff to attend to Brian
Sinclair and who witnessed the shocking events reported them to the
media. The media reported the story, which quickly gained public
notoriety. SO. In response, WRHA disclosed confidential patient
information concerning Brian Sinclair to the media, and did so in a
manner that was selective, misleading and self-serving. 51. In
particular, the Defendant Brock Wright stated publicly that Brian
Sinclair never approached the triage desk. 52. This infonnation was
clearly false. WRHA and Brock Wright knew or ought to have known
that this information was false. 18 53. Brock Wright's false
statement implied that Brian Sinclair was in part to blame for
being ignored for thirty-four hours in the hospital and for his
death. 54. WHRA also communicated confidential patient information
concerning Brian Sinclair to the Government of Manitoba, which in
turn publicly repeated the selective, misleading and self-serving
account of Brian Sinclair's interaction with the HSC and its staff.
55. WRHA and its officers and staffwere not authorized by Brian
Sinclair's personal representative or family or permitted by law to
disclose any confidential information concerning Brian Sinclair,
whether true or false. WRHA did so out of its self-interest in
minimizing the burgeoning embarrassment that this scandal was
causing to WRHA and to the Government of Manitoba and in deflecting
attention away from their resulting liability. 56. WRHA's public
communications strategy in this regard was crafted and/or executed
by the Defendants Brock Wright and Heidi Graham and other
individuals whose identities are presently unknown to the
Plaintiff. 57. Following Brian Sinclair's death, WRHA classified
the case as a "critical incident." 58. More recently, after the
truth publicly came out (through the Chief Medical Examiner) that
Brian Sinclair did report to triage upon his arrival at the HSC and
that security videotapes showed that he did so, WRHA publicly
admitted that it was responsible for his death. 19 59. Following
Brian Sinclair's death, the Chief Medical Examiner called an
inquest into the death. 60. The calling of the inquest was a
foreseeable, and virtually inevitable, consequence of the
recklessness or negligence of the Defendants and their breach of
their duty of care owed to Brian Sinclair. 61. The Court has
declared the Estate and Family of Brian Sinclair to be essential
parties to the inquest into the death of Brian Sinclair, and
concluded that it is fundamental that the Sinclairs have their own
advocate to represent them during the inquest process. The Court
has noted that Brian Sinclair's death was "unnecessary and entirely
preventable" and that the Sinclairs are innocent victims. The Court
has recognized that the Sinclairs are not at the inquest because
they want to be, but that the actions or inactions of WRHA caused
Brian Sinclair's death and brought the Sinclairs to the inquest to
begin with. 62. The Court has stated that WRHA should be "leaping
forward" to assist the Sinclairs with resources to assure their
full and meaningful participation in the inquest into the death of
Brian Sinclair. Despite this judicial exhortation, WRHA has
repeatedly refused the Sinclair Estate and Family'S requests for
such assistance. 63. The Government of Manitoba has offered some
funding for some of the Sinclair Estate and Family's legal fees and
disbursements in connection with the inquest, but has refused to 20
provide funding in an amount that is minimally adequate, equitable,
or fair by any objective standard. LIABILITY IN TORT FOR PAIN AND
SUFFERING AND WRONGFUL DEATH 64. WRHA and the HSC ER Medical Staff
were negligent in causing Brian Sinclair to needlessly suffer in
pain during his thirty-four hours in the hospital waiting room, and
in causing his wrongful death from a treatable medical condition.
The Government of Manitoba caused or contributed to the same
consequences including by establishing or causing or allowing the
operation of a hospital emergency room that it knew was injurious
to public health. and in particular to the health of vulnerable
Aboriginal persons. and by failing to take proper steps to abate
the risk. 65. WRHA and the HSC ER Medical Staff owed a duty to
Brian Sinclair to safeguard and preserve his health, to provide
timely and appropriate recognition of his symptoms and initiation
of care, to take reasonable steps to relieve his pain, to provide
him with the necessaries of life, and not to create or exacerbate a
risk of harm to his health or his life as a patient seeking care at
a WRHA hospital. 66. The Government of Manitoba and WRHA owed a
duty to Brian Sinclair, as a vulnerable patient seeking and
requiring health care in Manitoba, to. inter alia. ensure that the
HSC ER was adequately funded and staffed and that its staff had the
proper qualifications, training, and comportment to ensure that his
basic health care needs were capable of being met. 21 67. The
standard of care required in these circumstances was one of a
sophisticated Regional Health Authority, operating and responsible
for health services in a major urban centre, and of highly trained
emergency room medical staff functioning in an adequately funded
and properly administered hospital emergency department. 68. More
specifically, WRHA breached its duty of care to Brian Sinclair and
the Government of Manitoba knowingly created. contributed to. or
allowed an unreasonable and unabated interference with public
safety by, inter alia: a. Failing to provide adequate environments,
systems and safeguards to ensure that persons presenting at the HSC
ER requiring the attention of a physician, and in particular Brian
Sinclair, would be triaged appropriately and provided with the
necessary care in a timely fashion; b. Failing to develop, adopt
and/or implement policies and procedures to ensure that patients in
the HSC ER waiting room were appropriately monitored and to ensure
that the complaints of hospital security staff, patients and
visitors about the condition of other patients, and in particular
the condition of Brian Sinclair, were appropriately addressed. c.
Allowing the HSC ER during the period September 19, 2008 to
September 21, 2008 to be staffed by persons lacking the knowledge,
skill, experience, training, compassion, and/or empathy necessary
to address the medical and other needs of Brian Sinclair, an
extremely vulnerable and marginalized disabled Aboriginal man; 22
d. Failing to properly fund, resource, and manage the HSC ER such
that the morale of HSC ER staff was very low, and their stress,
workload, and absenteeism were high, all of which contributed to
having staff working in the HSC ER who either could not, or who did
not want to, properly look after patients in their care; e.
Operating the HSC ER with an insufficient number of qualified
nurses and medical doctors to meet the needs of the public, and in
particular the needs of Brian Sinclair; f. Failing to provide
adequate anti-discrimination and other human rights training to HSC
ER staff and WHRA officers in order to address systemic biases
resulting in a series of preventable injuries to vulnerable and
marginalized individuals and especially to Aboriginal people, and
in particular to Brian Sinclair; g. Failing to require, implement,
or ensure affirmative emergency health care treatment for
vulnerable patients and especially for Aboriginal people who the
Government of Manitoba and WRHA know have disproportionately poor
health outcomes compared to the general population, and in
particular for Brian Sinclair. 69. WRHA and the HSC ER Medical
Staff were negligent in breaching their duty of care to Brian
Sinclair by ignoring him for 34 hours and by negligently failing to
provide him with any care or attention whatsoever or with any of
the necessaries oflife. In particular, WRHA and the HSC ER Medical
Staffwere negligent in, inter alia: a. Failing to properly triage
or assess Brian Sinclair after he arrived at the HSC ER and
reported to the triage desk; 23 b. Failing to make themselves
knowledgeable about Brian Sinclair's attendance and his health
status upon his arrival at the Emergency Room, upon the Defendants'
beginning their work shifts, upon their observing Brian Sinclair in
the waiting room, and/or at any time after Brian Sinclair attended
the HSC ER triage desk; c. Failing to observe or act upon Brian
Sinclair's need for affinnative and attentive treatment and care,
given his incapacity to properly advocate for his own medical needs
and the risk that a marginalized, disabled, cognitively impaired
Aboriginal man with a speech impediment would not receive adequate
medical care in the HSC ER without such atIinnative and attentive
treatment and care; d. Failing to advise the Emergency Room
physician or physician on call about Brian Sinclair's condition
immediately, or at any time after Brian Sinclair attended the ER
triage desk; e. Failing to provide Brian Sinclair with any food,
water, pain medication, antibiotics, catheter change, relief from
his inability to urinate, means to contact a family member,
companionship, or other necessaries of life; f. Failing to notice
the obvious signs of Brian Sinclair's considerable and increasing
distress, or if they did notice, failing to do anything to ensure
that he received any care or assistance; g. Continuing to fail to
give Brian Sinclair any care, treatment, assessment, or necessaries
of life after they had positive knowledge of Brian Sinclair's long
presence in the HSC 24 ER waiting room and of his deteriorating
health condition, which knowledge they gained from: 1. Security
staff reporting to them that Mr. Sinclair needed help; ii.
Attempted interventions by fellow patients or visitors in the HSC
ER waiting room; 111. The fact that Brian Sinclair was vomiting,
which they either observed or was brought to their attention by
other staff or patients; and IV. Visual observations of Brian
Sinclair by HSC ER Medical Staff, including by those who walked
right by him, those working in the triage area and in the minor
treatment area steps away from where Brian Sinclair was sitting,
and those who would have noticed that the same double-amputee in a
wheelchair who was present during their Friday shift was still
there when they came in for their Saturday shift. 70. As the
foreseeable result of the negligence of WRHA and the HSC ER Medical
Staff and the public nuisance caused or allowed by the actions or
inactions of the Government of Manitoba, Brian Sinclair suffered in
pain for over thirty hours. 71. As a further foreseeable result of
the negligence of WRHA and the HSC ER Medical Staff and the public
nuisance caused or allowed by the actions or inactions of the
Government of Manitoba, Brian Sinclair died. 25 72. Brian
Sinclair's death was entirely preventable. It could have and would
have been prevented had WRHA and the HSC ER Medical Staff properly
fulfilled their duties and provided basic medical care and
necessaries of life to Brian Sinclair. It could have and would have
been prevented had the Government of Manitoba not caused or allowed
the HSC ER to operate in a manner that constituted a hazard to
public health. and in particular to the health of vulnerable
Aboriginal persons. or had the Government of Manitoba taken proper
steps to abate the risk. 73. Brian Sinclair's death followed a
litany of preventable tragedies in WRHA health care institutions,
and especially at the HSC ER and disproportionately involving
Aboriginal patients. 74. The Government of Manitoba and WRHA owed a
duty to Manitobans who attended the HSC ER, including Brian
Sinclair, to take proper actions to identify the root causes of
these problems and to take affinnative remedial actions to remedy
same. Notwithstanding a clear pattern of failure and tragedy, the
Government of Manitoba and WRHA failed to take proper steps to
identify the root causes of these problems or to address those
problems, and thereby allowed the tragedy that befell Brian
Sinclair to occur. 75. It was reasonably foreseeable that the WRHA
and the HSC ER Medical Staffs gross negligence or recklessness,
including their ignoring a sick and vulnerable patient in their
care, could lead to that patient's death. and it was reasonably
foreseeable that the , , 26 Government of Manitoba's actions or
inactions could imperil the health of vulnerable members of the
public seeking emergency health care. potentially fatally so. 76.
It was reasonably foreseeable, and in fact probable, that such
fatal negligence and other tortious actions or inactions of the
Defendants would result in the Chief Medical Examiner calling a
public inquest pursuant to the Fatality Inquiries Act. 77. It was
foreseeable that the victim's family would have the right to
meaningfully participate in such an inquest, that the family
(especially where the victim was a vulnerable, indigent, homeless,
disabled Aboriginal man) would need and be entitled to legal
representation, and that there would be a cost for such legal
representation that would be beyond the means of the innocent
victim's family. BREACH OF SECTION 7 OF THE CHARTER OF RIGHTS 78.
Section 7 of the Canadian Charter of Rights and Freedoms provides
that everyone has the right to life, liberty, and security of the
person. 79. WRHA and the HSC ER Medical Staff wrongfully deprived
Mr. Sinclair of his right to life under s. 7 of the Charter by
knowingly or recklessly withholding the readily available medical
treatment and other necessaries of life that it was their duty to
provide to him, for thirty-four hours. 27 80. WRHA and the HSC ER
Medical Staff also violated Brian Sinclair's right to security of
the person under s. 7 of the Charter by knowingly or recklessly
leaving him to suffer in pain at a public medical facility in
degrading conditions. 81. Brian Sinclair was a vulnerable human
being who placed himself under the care and control of the WRHA and
HSC ER Medical Staff, entrusting them with his life and his
personal security. Instead of being provided with the medical care
that he urgently required, Brian Sinclair was ignored and denied
access to food, water, medication and basic care, and he was forced
to endure mental and physical anguish without relief. He was left
to die, vomiting over himself, alone and forgotten, in a major
Manitoba hospital, steps away from the medical professionals who
were charged with his care. 82. The WRHA Defendants' actions, and
their failure to act, while Brian Sinclair was in their care
constituted a grave offence to Mr. Sinclair's human dignity,
self-respect and self-worth, and needlessly deprived him of his
life. 83. Further, the actions or inactions of the Government of
Manitoba as described herein breached Brian Sinclair's s.7 rights,
as well as constituting public nuisance or other torts. BREACH OF
SECTION 12 OF THE CHARTER OF RIGHTS 84. Section 12 of the Canadian
Charter of Rights and Freedoms provides that everyone has the right
not to be subjected to any cruel or unusual treatment. 28 85.
Leaving Brian Sinclair to needlessly suffer and die in pain as he
vomited over himself was cruel. This treatment was also unusual, in
that it was a drastic departure from what Canadians rightfully
expect from a major Canadian medical facility and from the standard
of care that such facilities have a legal duty to provide. This
treatment breached section 12 of the Charter. 86. Such treatment
was excessive in its neglect of Mr. Sinclair's basic needs and in
its denial of his dignity as a human being who deserved respect.
The level and prolonged duration of the WRHA Defendants' wanton
recklessness or neglect far exceeded the limits of what is
acceptable at a public medical facility in Canada and were so
extreme as to outrage the standards of decency held in Canadian
society. 87. The WRHA Defendants' cruel and unusual treatment of
Brian Sinclair was made all the more egregious by the fact that Mr.
Sinclair was a very vulnerable, disabled, cognitively impaired
individual who was tmable to advocate on his own behalf and
completely dependent on the medical institutions and medical
professionals he went to for care. BREACH OF SECTION 15 OF THE
CHARTER OF RIGHTS 88. Section 15 of the Canadian Charter of Rights
and Freedoms provides that every individual is equal before and
under the law and has the right to equal protection of the law
without discrimination. 29 89. Brian Sinclair was ignored and was
not given the attention and care that he required as a result of
his status as a marginalized person - Aboriginal, physically
disabled, cognitively impaired, very poor and transient, and very
vulnerable. 90. Instead of being ignored as a result of his status,
the principle of substantive equality required that Brian Sinclair
receive more affirmative and attentive care than might be expected
in the case of an able-bodied, able-minded, non-aboriginal,
socio-economically advantaged individual who was fully capable of
advocating for him or herself. 91. The prolonged and complete
denial of appropriate medical and other care to Brian Sinclair
harmed his human dignity, in that the discrimination marginalized,
ignored, devalued and abrogated his sense of humanity, self-respect
and self-worth. This treatment, in either or both its purpose and
effect, was very different than the prompt and attentive treatment
that an able-bodied, able-minded, non-aboriginal,
socio-economically advantaged individual who was fully capable of
advocating for him or herself would have received. 92. This unequal
and inequitable treatment constitutes discrimination pursuant to
section 15 of the Charter Jill which WRHA is liable. 93. Further,
the actions or inactions of the Government of Manitoba, as
described h ~ breached Brian Sin91air's s.15 rights as well as
constituting public nuisance or other torts. 30 LIABILITY FOR
BREACH OF PRIVACY 94. WHRA had a duty to preserve Brian Sinclair's
privacy interest in his persona] medical infonnation, to guard
against the misuse of this infom1ation, and to protect Brian
Sinclair's family against injury from that misuse. In breach of
that duty, WRHA, Brock Wright, Heidi Graham, and other individuals
whose identities are presently unknown to the Plaintiff,
deliberately, recklessly or negligently misused this information to
serve WRHA's own ends and the political interests of the Government
of Manitoba. 95. A fa.lse account of Brian Sinclair's personal
medical information was actively publicized and disseminated by the
Defendants WRHA, Brock Wright and Heidi Graham as part of their
media campaign to deflect responsibility for Brian Sinclair's death
away from WRHA in the immediate aftermath of this tragedy. As part
of these efforts, Brock Wright and other individuals falsely
asserted to the media that Mr. Sinclair did not attend to the
triage desk at the Winnipeg HSC ER or have contact with triage
staff upon his arrival, implying that Brian Sinclair was in some
way responsible for his own suffering, and ultimately his own
death, as he waited for thirty-four hours to receive care and
comfort that never an'ived. 96. The Personal Health Information Act
and the Regional Healrh Authorities Act establish a right of
individuals to privacy in their personal health information. At no
time did Brian Sinclair or any personal representative or family
member consent to the public disclosure of Brian Sinclair's
personal medical information by WRHA. 31 97. By publicizing an
account - even a false account - of the medical services provided
to Brian Sinclair (or the failure thereof) at the HSC, WRHA
substantially, unreasonably, and without a claim of right violated
Brian Sinclair's privacy rights under s. 2(1) of the Privacy Act.
98. Additionally, WRHA and its officers and staff owed a clear duty
of care to the Family of Brian Sinclair to protect them against the
misuse of Brian's personal medical information. Section 57 of the
Regional Health Authorities Act, as well as ss. 21 and 22(1) of the
Personal Health Information Act, establish a duty on the part
ofWRHA and its officers and staff to keep information about the
provision of medical services confidential, and thereby to
safeguard those vulnerable to damage from its misuse. 99. WRHA's
duty of care to the Sinclairs is also informed by its 'Statutory
responsibility under s. 16 of the Personal Health Information Act
to ensure the accuracy of personal health information. In
particular, s. 16 required WRHA to ensure that its use of Brian
Sinclair's personal health information was not misleading. 100. The
relevant standard of care is that of a large urban Regional Health
Authority charged with a clear statutory mandate to manage and
protect personal health information and responsible for placing top
priority on the confidentiality of its patients. 101. WRHA, Brock
Wright, Heidi Graham, and other unknown WRHA employees breached
their duty of care to the Family of Brian Sinclair by negligently
misusing Brian Sinclair's personal medical information in WRHA's
own self-interest. In particular, these Defendants: 32 a. Failed to
preserve the integrity and confidentiality of Brian Sinclair's
personal medical information, including information about his
actions and indicative of his state of mind upon attending the HSC
ER, and information about the provision of medical services; b.
Recklessly disseminated to the media personal medical information
about Brian Sinclair that they knew to be false; c. Willfully or
recklessly disseminated a public message, as part their planned
public relationship strategy in the aftermath of Brian Sinclair's
death, that suggested that Brian himself was implicit in or wholly
to blame for the tragic circumstances leading to his death. 102.As
the result ofWRHA's negligence and its violation of Brian
Sinclair's privacy rights, Brian Sinclair's family members have
suffered further distress, public embarrassment and mental anguish.
At a time when the family was grieving and coming to terms with
Brian Sinclair's shocking death, WRHA proceeded to negligently cast
blame on Brian Sinclair for WRHA's own failure to provide him with
basic care. DAMAGES 1 03. Prior to his death, Brian Sinclair had a
cause of action in tort for the pain and suffering he endured as a
result of the Defendants' negligence, public nuisance, or other
torts, which claims are now vested in Brian Sinclair's Estate
pursuant to s. 53(1) of the Trustee Act. The Plaintiff claims
general damages for Brian Sinclair's pain and suffering as he sat
in the 33 waiting room of the Health Sciences Centre for
thirty-four hours, needlessly suffering from abdominal pain, a
blocked catheter, sepsis, and other conditions. 104. The Plaintiff
further claims damages for breaches of Brian Sinclair's Charter
rights, under s. 24(1) of the Charter. The loss of self-respect and
dignity and other injuries that Brian Sinclair suffered as a result
of the breaches of his Charter rights in the hours prior to his
death were considerable. 1 05.In addition, the Fatal Accidents Act
provides that the administrator of the Estate may maintain an
action on behalf of the beneficiaries of the Estate for loss of
guidance, care and companionship in cases of wrongful death. The
Plaintiff claims damages in this regard in an amount prescribed by
s. 3.1 of the Fatal Accidents Act. 106. The Plaintiff further
claims general and aggravated damages for the distress, annoyance
and embarrassment suffered by the family of Brian Sinclair as the
result of the violation of Brian Sinclair's privacy and negligent
breach of confidentiality, releasing an account of Brian's personal
medical information to the media in the immediate aftermath of his
death, and abusing Brian Sinclair's privacy rights by disseminating
a misleading and false self-serving account. 107.Further special
and/or general damages in an amount sufficient to pay the Brian
Sinclair Estate and Family's reasonable legal costs and
disbursements for participating in the inquest into the death of
Brian Sinclair are warranted as a result of the Defendants'
wrongdoing. The 34 Estate and Family has necessarily retained legal
counsel for the inquest and have incurred and will continue to
incur legal costs and disbursements to prepare for and meaningfully
participate in the inquest. These costs will be approximately
$300,000. This amount is reasonable compared to the considerably
higher amounts that WRHA has spent and will be spending to
represent its o\vn interests in the same inquest, and considering
judicial and other objective assessments of what is reasonable and
fair in the circumstances. 108.The Sinclairs are only in the
position of having to incur these inquest legal costs as a
foreseeable result of the torts committed by the Defendants.
109.Punitive and exemplary damages are warranted against WRHA and
the HSC ER Medical Staff as a result of the reprehensible, callous,
and egregious manner in which Brian Sinclair was ignored in the
thirty-four hours prior to his preventable death. 11 O.Punitive and
exemplary damages are claimed for the torts that caused him pain
and suffering prior to his death. Punitive and exemplary damages
are not claimed for Brian Sinclair's wrongful death itself as a
result of being precluded by the Fatal Accidents Act. 111. Punitive
and exemplary damages are also warranted against WRHA, Brock
Wright, and Heidi Graham as a result of these Defendants' wanton,
callous, and self-serving use of Brian Sinclair's personal medical
information to recklessly attempt to deflect blame away from WRHA
and the Government of Manitoba and onto Brian Sinclair for his own
suffering and ultimate death. , , ' 35 112. The Plaintiff pleads
and relies upon the provisions of the: a. Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K), ch. 11, including ss. 7,
12, 15 and 24 thereof; b. Canada Health Act, R.S.C. 1985, c. C-6;
c. Trustee Act, C.C.S.M. c. T160, including s. 53(1) thereof; d.
Fatal Accidents Act, C.C.S.M. c. F50, including ss. 2(1), 3(1) and
3.1(2) thereof; e. Privacy Act, C.C.S.M. c. P125, including s. 2(1)
thereof; f. Personal Health Information Act, C.C.S.M. c. P33.5,
including ss. 16,20(1),21, and 22(1) thereof; g. Regional Health
Authorities Act, C.C.S.M. c. R34, including s. 57 thereof; h.
Proceedings Against the Crown Act, C.C.S.M. c. P140, including ss.
4(1) and 10 thereof; 1. Tortfeasors and Contributory Negligence
Act, C.C.S.M. c.T90, including s.5 thereof; J. Court of Queen 's
Bench Act, C.C.S.M. c. C280, including ss. 80 and 84 thereof.
September 15,2010 ZBOGAR ADVOCATE 51 Crossovers st. Toronto Ontario
Canada M4E 3X2 Vilko Zbogar T.416-855-671O F.416-855-6709
[email protected] POSNER & TRACHTENBERG 710-491 Portage
Avenue Winnipeg Manitoba Canada R3B 2E4 Murray N. Trachtenberg T:
(204) 940-9602 F: (204) 944-8878 [email protected] Counsel
for the Plaintiff