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 vzbogar@zbogaradvocate.ca POSNER & TRACHTENBERG 710-491 Portage Avenue Winnipeg Manitoba Canada R3B 2E4 Murray N. Trachtenberg T: (204) 940-9602 F: (204) 944-8878 mtrachtenberg@ptlaw.mb.ca 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 vzbogar@zbogaradvocate.ca POSNER & TRACHTENBERG 710-491 Portage Avenue Winnipeg Manitoba Canada R3B 2E4 Murray N. Trachtenberg T: (204) 940-9602 F: (204) 944-8878 mtrachtenberg@ptlaw.mb.ca Counsel for the Plaintiff