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Decision reserved on Sinclair 'public nuisance' case

By: Larry Kusch

Posted: 02/13/2012 11:08 AM | Comments: 0 (including replies) | Last Modified: 02/16/2012 9:41 AM | Updates

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Brian Sinclair died after 34 hours without care. (MAURICE BRUNEAU PHOTO)

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- Court to rule if province can be held legally responsible for Sinclair's death

A Winnipeg court has reserved decision on whether the province is liable for allegedly creating a public crisis that led to the death of a homeless man in a Winnipeg hospital's emergency room.

Court of Queen's Bench Master Shayne Berthaudin said he'll release a written decision at a later date.

Brian Sinclair's family alleges the province allowed the ER to operate even though it constituted a "public nuisance" and was "injurious to public health."

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

Government lawyers say on the public nuisance aspect, the family's lawsuit makes "bald allegations" without any evidence to back them up.

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

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

Sinclair's family accuses the province of putting public safety at risk, particularly the health of vulnerable aboriginal people, by knowingly allowing the ER to operate.

The province wants that portion of the lawsuit, along with claims that Sinclair's privacy and charter rights were violated, to be dismissed.

"Constitutional rights do not survive death," government lawyer Heather Leonoff said.

However, lawyers for the family said the public nuisance and charter aspects of their claim should not be dismissed at such an early stage of the proceedings.

Lawyer Murray Trachtenberg said if the family has a chance of making a case at trial, the court cannot strike the claims as argued by the province.

"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."

Sinclair family paid $110,000

Meanwhile, The Winnipeg Regional Health Authority said today it's issued a cheque for $110,000 to the family of Brian Sinclair to settle a portion of a lawsuit dealing with its claim for "loss of care, guidance and companionship for his wrongful death."

The WRHA said in a news release this morning that after receiving the financial settlement earlier this month, lawyers for the Sinclair family filed a notice of discontinuance for that part of the lawsuit against the health authority, some of its staff and the provincial government.

The WRHA said it has "consistently acknowledged" the role it played in the death of Sinclair.

"He was a patient who came to the Health Sciences Centre seeking help which the hospital failed to provide. His death was preventable. As soon as they were able to contact his next-of-kin, representatives of the hospital immediately apologized to them," the WRHA said.

A provncial inquest has 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.

History

Updated on Monday, February 13, 2012 at 11:38 AM CST: Updated

4:01 PM: Updated with judge reserving decision.

February 16, 2012 at 9:41 AM: Removes reference to judge.

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