Brian Sinclair family lawyers suffer legal setback

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This article was published 20/03/2012 (5278 days ago), so information in it may no longer be current.

Lawyers for the family of Brian Sinclair suffered a legal setback today in their lawsuit against the province over his death in a Winnipeg emergency room.

Court of Queen’s Bench master Shayne Berthaudin said the family doesn’t have a case to make and that it can’t proceed any further.

The family’s legal team of Vilko Zbogar and Murray Trachtenberg wanted to sue the province for allegedly allowing emergency-room treatment in Manitoba to deteriorate to the point it created a public nuisance.

Sinclair, a 45-year-old double amputee, died in 2008 of a treatable bladder infection at the Health Sciences Centre after waiting 34 hours for treatment. The WRHA recently paid Sinclair’s family $110,000 on a portion of their lawsuit dealing with Brian Sinclair’s wrongful death.

Berthaudin, said in a written decision, that Zbogar and Trachtenberg did not provide any evidence to back up their public nuisance allegation.

“There are no material facts relating to anyone else having suffered the same or a similar fate, or indeed any type of risk endured by vulnerable Aboriginal persons in hospital emergency rooms,” he said.

Zbogar said the family will appeal Berthaudin’s decision.

“These legal roadblocks are confusing and frustrating,” Sinclair’s cousin Robert Sinclair said in a statement. “This ruling will do nothing to make our health care system any better. It just lets the government and hospitals duck behind legal technicalities.”

Berthaudin also struck out a claim by the family that Brian Sinclair’s charter right and privacy rights were violated by the Winnipeg Regional Health Authority. Like judges, masters make decisions based on the law and evidence presented to them.

“If a breach of privacy was committed in this case, it was not committed against Brian Sinclair as a natural person because he was already deceased when it occurred,” Berthaudin said. “At best, the violation was against his estate. It was also not committed against his family members as it was not their privacy allegedly being violated.”

He also said there were no legal grounds for the family to sue that Sinclair’s right to life under the charter was violated.

“Labelling one’s cause of action as novel does not necessarily insulate it from a motion to strike, if it remains plain and obvious that there is no reasonable cause of action for the plaintiff to pursue,” Berthaudin said in the decision.

Berthaudin, however, said Sinclair’s family does have a case against the WHRA to recover the legal costs of the upcoming provincial inquest into Sinclair’s death.

The inquest 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