Sinclair family’s case in court

Hey there, time traveller!
This article was published 14/02/2012 (5224 days ago), so information in it may no longer be current.

It was a day-long court hearing between lawyers — long on words and legalese — but for Robert Sinclair it was just another step in making sure his cousin did not die in vain.

Monday’s hearing on whether the province is liable for allegedly creating a public nuisance that led to the death of Brian Sinclair was also Robert Sinclair’s way of making sure what happened doesn’t happen to anyone else.

Sinclair, a 45-year-old double amputee, died of a treatable bladder infection more than three years ago at Winnipeg’s Health Sciences Centre after waiting 34 hours for treatment.

Now, Robert Sinclair’s legal team of Vilko Zbogar and Murray Trachtenberg wants to sue the province and the Winnipeg Regional Health Authority for allegedly violating Brian’s privacy rights, his charter rights and for allowing emergency-room treatment in Manitoba to deteriorate to the point it created a public nuisance.

Lawyers for the WRHA and province say those allegations have no legal merit because there’s no evidence to back them up. They want the claim dismissed.

“If they have the particular facts, plead them,” government lawyer Glenn McFetridge said in court.

“The fact that this is a notorious case does not make it a public nuisance case.”

They also said the Sinclair family only had a case for negligence, which has been settled.

On Monday, about one hour into the court hearing, the WRHA said in a statement Brian Sinclair’s family will be paid $110,000 on a portion of their lawsuit dealing with “loss of care, guidance and companionship for his wrongful death.”

“He was a patient who came to the Health Sciences Centre seeking help, which the hospital failed to provide,” the WRHA said. “His death was preventable.”

Zbogar said the timing of the WRHA release was “interesting.”

“One part of the claim is settled,” Zbogar said. “The difficult part is what’s left. The Sinclair family isn’t going anywhere. They want answers.”

Those answers won’t come immediately.

What has to be decided now is whether the Sinclair family can sue the WRHA and province for the alleged violation of Brian’s privacy and charter rights, and if the province’s ER system was a public nuisance.

Court of Queen’s Bench master Shayne Berthaudin said he’ll release a written decision on those issues at a later date. Like judges, masters make decisions based on the law and evidence presented to them.

Government lawyers say, on the public nuisance aspect, the family’s lawsuit makes only “bald allegations” without anything to back them up.

Government lawyer Heather Leonoff said Sinclair’s charter rights died with him.

“There’s no foundation in law for these claims,” she said.

“Constitutional rights do not survive death.”

Trachtenberg and Zbogar argued their case should not be dismissed outright before going to trial.

“This case is not just about compensation,” Trachtenberg said. “The bottom line here is that facts like this have not been adjudicated in a post-war case in the country.”

A provincial inquest has also been called into Sinclair’s death.

It will proceed only after any criminal charges are dealt with by the courts. No decision has been made on charges.

The Saskatchewan Crown attorney’s office is currently studying a Winnipeg Police Service investigation into Sinclair’s death. It was referred to them by Manitoba Attorney General Andrew Swan late last year.

bruce.owen@freepress.mb.ca