Grant v. WHRA Et Al - Province Brief 2

BETWEEN:

File No. CI10-01-68315 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 TORRESCERECEDA, HONORA KEARNEY, VAL HIEBERT, TODD

TORFASON, LORI STEVENS, JORDAN LOECHNER, JANE DOE and JOHN DOE

MOTION BRIEF OF THE DEFENDANT, THE GOVERNMENT OF MANITOBA

(Motion to strike public nuisance claim)

Hearing Date Before Master: February 13, 2012

MANITOBA JUSTICE Civil Legal Services (S.OA)

per: W. Glenn McFetridge General Counsel

7th Floor, 405 Broadway Winnipeg , Manitoba R3C 3L6

Telephone No.: 945-2843 Fax No: 948-2826

File No.: HE21AO(12)

Plaintiff,

Defendants.

(i)

INDEX

PART I LIST OF DOCUMENTS TO BE RELIED ON ......... .. ............. .. .................. 1

PART II LIST OF AUTHORITIES TO BE RELIED ON ..... .. .......... .. .... .. .......... .. ...... 1-2

PART III BRIEF OF ARGUMENT .. .. ...... .... .. .... .... .. ........ .. .. ... .. .... .. .... .. ............. ..... .. 2-18

I. INTRODUCTION ... ... .... ...... .... ... ..... ....... .... .. ... ....... ..... ... ... .... ..... .. .... .. . 2-3

II . BACKGROUND ....... ......... ...... ...... ......... .............................. ...... ... ..... 3-6

III . LEGiSLATION ..... .. .. .... ............ .... .... ... ......... ... ... ...... ... .... ..... ..... ........ .. 6-8

IV. PUBLIC NUISANCE CLAIM AGAINST MANITOBA ................ .. ......... 8-17

A. WHAT IS A PUBLIC NUISANCE .......................... .. ....... ....... .. ..... 8-1 2

B. THE PLEADINGS ........ .. .. .. .. .... .. .. .. ......... ....................................... 12-14

C. ALLEGATIONS OF PUBLIC NUISANCE AGAINST MANITOBA .. 14-17

V. RELIEF REQUESTED ...... ... .... .. .. ...... .. ...... ........ .. .... .. .. .. .. .. .. .. .... .. ....... 18

PART I LIST OF DOCUMENTS TO BE RELIED ON

1. Re-Amended Statement of Claim filed on October 14, 2011

2. Notice of Motion filed November 4, 2011 ;

PART II LIST OF AUTHORITIES TO BE RELIED ON

LEGISLATION

Court of Queen 's Bench Rule 25(11 )(d), 25.06(1) (3) . ... .... ...... ... ...... ... ........ 1

Canada Health Act, R.S.C. 1985, c. C-6, .5. 4, 5 and 7 .......... ... ... .... ..... ..... . 2

The Regional Health Authorities Act, C.C.S.M. c. R34........... .. ................ .. .. 3

II. CASELAW (in order cited)

Dumont v. Canada (Attomey General), [1990] 1 S.C.R. 279.1990 Can LlI131 (S.C.C.) ...... .. .... .. ........... ..... .. ... ........ ... ... ... . 4

Hunt v. Carey Canada Inc., [1990]2 S.C.R. 959 at para . 33 , 1990 CanLiI ...... ... .......... ....... ................. ....... ... ... .. .. ........ .... ... .. ... ..... .... ... ... . 5

Ryan v. Victoria (City) , [1999]1 S.C.R. 210 .... .. .... .. .... ... .. ........ ... .... ... .. .... .. .. .... 6

Attorney General vPYA Quarries Ltd., [1957J 2 Q.B. 169 .. .. .. ......................... 7

Stein v. Gonzales (1984), 14 D.L. R.(4th) 763 (B.C. S.C.) .. .... ........ .. .... .. .. ......... 8

Sutherland v. Vancouver International Airport 2002 BCCA 416 (CanLlI ) ......... 9

Heye5 v.City of Vancouver 2009 BCSC 6521 (Can LlI) .................... .. .. .. ..... .. .. 10

Gleneagles Concerned Parents Committee Society v. British Columbia Ferry Commission 2001 BCSC 512 ..................... ........ .. .......... ... ... .. 11

Operation Dismantle v. Canada, 1 S.C.R. 441 (extract only) .. .. .. .. ............. ...... 12

2

Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipal ity) [1990] O.J. No. 589 ... ... ... .. ..... ... ......... .. .. ... .. ... ..... ..... ..... .... ... .......... .... ..... .... ... 13

Ontario v. Gratton-Massuy Environmental Technologies Inc. 2010 ONCA 501 ... ................. ... .. ... ... ...... .............. ... ... .. .... .......... ... ..................... 14

Miguna v. Ontario (Attorney General) [2005] O.J. No. 5346 (Ont. C.A. ) ........ . 15

Belanyk v. University of Toronto [1999] O.J. No. 2162 .. .......................... .... ... . 16

Pazkowski v.Cross Lake First Nation [1995] M.J. No. 454 (Master Bolton) .... 17

Bergen v. Manitoba [1998] M.J. NO.51 (Master Sharp) ...... ... .. ........................ 18

Eliopoulos Estate v. Ontario (Minister of Health andLong Term Care), 2006 CanLiI 37121 (ON CA)leave to appeal denied by SCC [2006] S.C.C.A. No. 514 ......... ... .. ................. ...... .. ... .. ... .. ..... ... . ........................ 19

Ill. Texts

G.H.L. Fridman, The Law of Torts in Canada, 2nd ed . (2002) (extract only) .. .. 20

Klar, Linden, Cherniak, Kryworuk, Remedies in Tort, Vol. 3, Chapter 17 (extract only) .. ...... .. .. ........................................ .. .. .. .... .......... .. .. .... . 21

Phillip H. Osborne, The Law of Torts, 3,d ed . (2007) (extract only) .. ...... .. .... .. . 22

PART III BRIEF OF ARGUMENT

1. INTRODUCTION

1. . The defendant, the Government of Manitoba ("Manitoba"), has brought a motion

pursuant to Court of Queen 's Bench Rule 25.11 (d) to strike all portions of the amended

statement of cla im as they relate to Manitoba on that basis that the allegations based on

the tort of public nuisance against Manitoba do not disclose a reasonable cause of

action.

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2. Court of Queen's Bench Rule 25(11 )(d) allows the court to strike out a statement

of claim if it does not disclose a reasonable cause of action . On such a motion no

evidence is filed and the determination is based on the allegations raised in the

statement of claim.

3. Furthermore, a statement of claim can only be struck out if the outcome of the

case is "plain and obvious" or "beyond doubt."

Dumont v. Canada (Attorney General) , [1990] 1 S.C.R. 279. 1990 CanLiI 131 (S.C.C.); See also: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at para. 33, 1990 CanLiI

II. BACKGROUND

4. This action was initially filed on September 15, 2010 by the plaintiff, as the

administrator of the estate of the late Brian Lloyd Sinclair ("Brian Sinclair").

5. The Re-Amended Statement of Claim was filed on October 14, 2010 after

Manitoba filed a motion and the supporting Motions Brief to strike out the action framed

in negligence against Manitoba as not disclosing a reasonable cause of action.

6. The material facts in support of this action set out in the Re-Amended Statement

of Claim have not changed from the original statement of claim.

Re-amended Statement of Claim, paras. 27-63

7. In essence it is still alleged that:

a. Brian Sinclair complained of abdominal pain, a catheter problem and lack

of urinary output for over 24 hours for which he attended a community health

clinic on September 19, 2008 at about 2:15 p.m.

Re-Amended Statement of Claim, para. 31

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b. Brain Sinclair was directed by a doctor at the community health clinic to

attend the emergency department (ER) of the Health Sciences Centre ("HSC") in

the City of Winnipeg for treatment of his condition , which he did on September

19, 2008 at about 2.53 p.m.

Re-Amended Statement of Claim, para. 2 and para. 31

c. Hospital staff callously, recklessly or negligently ignored Brain Sinclair as

he sat in the waiting room of the HSC ER for 34 hours and provided him with no

care, treatment, assessment, attention or necessaries of life . Brian Sinclair was

pronounced dead in the HSC ER waiting room at 12:51 a.m. on Sunday,

September 21 , 2008.

Re-Amended Statement of Claim, para. 3 and para. 39-45

8. It is still alleged that Manitoba is responsible at law, under the Constitution , and

as a matter of Canadian social policy to deliver health care in the province and that

Manitoba is responsible and accountable for emergency health care delivered by

Hospitals in the province.


9. It is still alleged that the Winnipeg Regional Health Authority ("WRHA") and the

defendant ER medical staff were negligent in causing Brian Sinclair to needlessly suffer

in pain during the 34 hours he was in the HSC ER waiting room, however, the allegation

that Manitoba was negligent has been removed.


10. It is now alleged that Manitoba caused or contributed to the death of Brian

Sinclair because it caused or allowed " ... the operation of a hospital emergency room

5

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."


11. It is still alleged that Manitoba owed a duty of care to Brian Sinclair as a

vulnerable person seeking and requiring care to ensure the HSC ER was adequately

funded and staffed and that its staff had the proper qualifications, training and

comportment to ensure his basic health care needs were capable of being met.

12. It was originally alleged in paragraph 68 of the statement of claim that both

Manitoba and the WRHA breached their duty of care owed to Brian Sinclair as

particularized in that paragraph 68 , which included failing to fund and resource the HSC

ER. The Re-Amended Statement of Claim, although setting out the same particulars

relied on in support no longer alleges that Manitoba breached a duty of care owed to

Brian Sinclair, now alleges Manitoba " ... knowingly created , contributed to, or allowed an

unreasonable and unabated interference with public safety ... " based on these

particulars.


13. It was originally alleged in paragraphs 70 and 71 of the statement of claim that as

a result of the negligence of the WRHA and its staff and the negligence of Manitoba,

Brian Sinclair suffered pain and ultimately died. In these same paragraphs in the Re

Amended Statement of Claim, the allegations of negligence against Manitoba have

been removed and a claim in public nuisance has been substituted.

14. It was originally alleged in paragraph 72 of the Statement of Claim that Brian

Sinclair's death could have been prevented if the WRHA and its staff and Manitoba had

properly fulfilled their duties and provided basic medical care and necessaries of life to

Brian Sinclair. This paragraph has been amended to remove this preceding allegation

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against Manitoba but to substitute the allegation against Manitoba that Brian Sinclair's

death could have and would have been prevented had 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 Manitoba

" .. . taken proper steps to abate the risk. "


15. In the original paragraph 75 of the Statement of Claim, it was alleged that the

gross negligence of all the defendants, including Manitoba, in ignoring a sick and

vulnerable patient in their care could lead to that patient's death. In the Re-Amended

Statement of Claim, the allegation of gross negligence against Manitoba has been

removed . It is now alleged that it was reasonably foreseeable that Manitoba's

" ... actions or inactions could imperil the health of vulnerable members of the public

seeking emergency health care, potentially fatally so. "

Amended and Re-Amended Statement of Claim, para. 75

III. LEGISLATION

16. Presumably in support of the new allegations made in the Re-Amended

Statement of Claim that Manitoba has committed a tort of public nuisance, the plaintiff

is still pleading and relying on the Canada Health Act, R.S.C. 1985, c.C-6 and The

Regional Health Authorities Act, C.C.S.M . c. R34 ("RHAA")


17. In terms of the provisions of the RHAA that govern the responsibilities of

Manitoba and the WRHA, the following sections are relevant:

a. Section 2(1) of the RHAA sets out the purpose of the Act which is to

create regional health authorities with the responsibility to provide for the

delivery and administering of health services in specific regions.

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b. The duties of regional health authorities are set out in s. 23(1) of the

RHAA. These include:

i. developing objectives and priorities for the provision of heath

services to meet the health needs of the region (s. 23(2)(c)) ;

ii. managing and allocating resources (s. 2(2)(f)); and

iii. providing for the delivery of health services (s . 23(2)(g)) .

c. Pursuant to s. 4(b) of the RHHA, the Minister responsible for the Act,

may, when it is in the public interest, do such things that the Minister considers

necessary to promote and ensure the provision of health services in the

province.

d. In terms of financial matters, the Minister, pursuant to s. 33 of the RHAA,

may provide funding to a regional health authority for the purposes of the RHAA

out of money appropriated by the legislature for those purposes.

18. The WRHA, pursuant to s. 2(1) of Schedule 12 of the Regional Health

Authorities Establishment Regulation, is the established regional health authority for

the Winnipeg Health Region.

19. The purpose of the Canada Health Act is to establish conditions in respect of

insured health services and extended health care services provided under provincial law

that must be met before a full cash contribution may be made by the Government of

Canada to each province. In order to receive these cash contributions the provinces

have to satisfy the criteria described in sections 8 to 12 respecting the following matters:

a. public administration;

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b. comprehensiveness;

c . universality;

d . portability; and

e. accessibility.

Canada Health Act, s. 4, s.5 and s.

IV. REASONABLE CAUSE OF ACTION BASED ON PUBLIC NUISANCE

A. WHAT IS A PUBLIC NUISANCE

20. A "private nuisance" is an interference with a person's enjoyment and use of his

land. The law recognizes that landowners, or those in rightful possession of land , have

the right to the unimpaired condition of the property and to reasonable comfort and

convenience in its occupation .

21 . What constitutes a "public nuisance" was dealt with by the Supreme Court of

Canada in Ryan v. Victoria (City), [1999]1 S.C.R 210. In Ryan, Major J. at paragraph.

52 stated as follows :

The doctrine of public nuisance appears as a poorly understood area of the law. "A public nuisance has been defined as any activity which unreasonably interferes with the public's interest in questions of health, safety, morality, comfort or convenience": see Klar, supra, at p. 525. Essentially, "[t]he conduct complained of must amount to . . . an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference": See G. H. L. Fridman, The Law of Torts in Canada, vol. I (1 989), at p. 168. An individual may bring a private action in public nuisance by pleading and proving special damage. See, e.g., Chessie v. J. D. Irving Ltd. (1982),22 C.C.L.T. 89 (N.B.CA). Such actions commonly involve allegations of unreasonable interference with a public right of way, such as a street or highway. See ibid., at p. 94 .

See also: G.H.L. Fridman, The Law of Torts in Canada, 2nd ed. (2002), p.209-211 ; Klar Linden , Cherniak Kryworuk, Remedies in Tort, Vol. 3, Chapter 17, pp. 17-42.6-17.45; Phillip H. Osborne, The Law of Torts, 3rd ed. (2007), pp.379-381

9

22. The concept of public nuisance was also reviewed in Attorney General v PYA

Quarries Ltd [1957]2 Q.B. 169 where Romer L.J . stated :

I do not propose to attempt a more precise definition of a public nuisance than those which emerge from the text-books and authorities to which I have referred. It is, however, clear, in my opinion, that any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. This sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.

Some public nuisances (for example, the pollution of rivers) can often be established without the necessity of calling a number of individual complainants as witnesses. In general, however, a public nuisance is proved by the cumulative effect which it is shown to have had on the people living within its sphere of influence. In other words, a normal and legitimate way of proving a public nuisance is to prove a sufficiently large collection of private nuisances.

23. In PYA Quarries Ltd, Denning L.J. talked about the difference between public

nuisance and private nuisance in the following terms:

I entirely a9ree with the judgment of Romer, L.J. , and have little to add. Counsel for the defendants raised at the outset this question: What is the difference between a public nuisance and a private nuisance? He is right to ra ise it because it affects his clients greatly. The order against them restrains them from committing a public nuisance, not a private one. The classic statement of the difference is that a public nuisance affects Her Majesty's subjects generally, whereas a private nuisance only affects particular individuals. But this does not help much. The question: when do a number of individuals become Her Majesty's subjects generally? is as difficult to answer as the question : when does a group of people become a crowd? Everyone has his own views. Even the answer "Two's company, three's a crowd" will not command the assent of those present unless they first agree on "which two". So here I decline to answer the question how many people are necessary to make up Her Majesty's subjects generally. I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so

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indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.

24. As indicated by Professor Osborne in The Law of Torts , supra:

(at p. 379)

.. . public nuisance generally fall into two broad categories.

The first category includes interference with the rights and interests of the public

which all persons share in common aces categories ....

(at p. 380)

The second category of public nuisance arises from a widespread interference

with the use and enjoyment of private land.

25. Generally no civil remedy exists for a private citizen harmed by a public

nuisance, even if his or her harm was greater than the harm suffered by others. Any

civil action for a public nuisance should in those circumstances be brought by the

Attorney General on behalf of the public- at- large. However; if the individual suffers

harm that is different from that suffered by the general public, the individual may

maintain a tort action for damages. Some nuisances can be both public and private in

certain circumstances where the public nuisance substantially interferes with the use of

an individual's adjoining land . As was stated by McLachlin J.(as she then was) in Stein

v. Gonzales (1984), 14 D.L.R. (4th) 763 (B.C.S.C.):

Private nuisance is conduct of the defendant which unreasonably and substantially interferes with the plaintiffs' use of their land .... Public nuisance is unreasonable and substantial interference with the rights of all members of the community or the members of a class which come within the sphere or neighbourhood of its operation: see Salmond and Heuston on The Law of Torts , 18th ed. (1981); 34 Hals. (4th) 102, para. 305. Private nuisance is a civil wrong . Public nuisance is a criminal offence.

[6] Public rights, including claims for public nuisance, can be asserted in a civil action only by the Attorney General as the Crown officer representing the public. A private person can bring

11

an action for an alleged or anticipated breach of the law only where that breach would constitute a breach of his private rights or would inflict "special" or "peculiar" damage upon him: ...

[7] The policy behind this rule is that the public and criminal jurisdiction of the court is not to be usurped in a civil proceeding . As long as the suffering or inconvenience is general, there is no place for independent intervention by private citizens. This rule, which prevents individuals from taking upon themselves the role of champions of the public interest, has been said to be established "for the purpose of preventing oppression by means of a multiplicity of civil actions for the same cause": Salmond and Heuston on The Law of Torts , p. 83.

[9] The first question is whether, notwithstanding its public character, the conduct of the defendants of which the plaintiffs complain is a private nuisance. A public nuisance may also constitute a private nuisance where the plaintiff is the occupier of land and the nuisance causes damages to his use and enjoyment of the land: J.P.S. McLaren, "Nuisance in Canada" in Studies in Canadian Tort Law (1968), A.M . Linden (ed.), c. 13, pp. 320-77 .... In the case at bar, this is not established . The plaintiffs concede that the defendants are causing no problems on their property which they cannot control. There is no evidence that the plaintiffs' use of their property has been interfered with by the defendants.

[10] I turn then to the second question - whether the plaintiffs have suffered special or particular damage as a result of the defendants' conduct entitling them to sue notwithstanding the public character of the nuisance. What is meant by special or particular damage? Some cases put the requirement generally, stating that a member of the public can maintain an action "only if he has sustained some substantial injury beyond that suffered by the rest of the public": Culp v. East York, [1956] O. R. 983, 6 D.L.R. (2d) 417 at 422, affirmed [1957] O.w.N. 515, 9 D.L.R. (2d) 749 (CA). Others state that the question is whether the plaintiff has demonstrated a violation of his private rights as opposed to a violation of rights enjoyed in common with other members of the public: Hagel v. Yellowknife (1962), 35 D.L.R. (2d) 110 (N .W.T.CA). A number of authorities suggest that to bring a private action for a public nuisance, the plaintiff must establish that the damage suffered differs not only in degree from that suffered by the public, but is of a different type: ...

[11] The common thread which runs through the authorities is that private citizens cannot maintain actions for public nuisance where the suffering and inconvenience complained of is shared by the public or a recognizable class of the public. The ultimate question is simple: is the damage suffered by the plaintiff different from that suffered by other members of the community? Thus plaintiffs have been held to have suffered special damage entitling them to sue privately where a public nuisance interfered with their right of

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ingress or egress to their private property. '" but have not been denied the right to sue where the interference with their rights was shared by other members of the public ....

See also: Sutherland v. Vancouver International Airport 2002 SCCA 416 (CanLlI) at paras. 20-34; Heyes v.City of Vancouver 2009 SCSC 6521 (Can LlI) at paras. 153-163; Gleneagles Concerned Parents Committee Society v, British Columbia Ferry Commission 2001 SCSC 512 at paras. 77-84

B. THE PLEADINGS

26. Without even getting into the argument of whether a cause of action exists in

public nuisance, Manitoba submits that no material facts have been pled in the Re

Amended Statement of Claim that would support or entitle the plaintiff to bring such an

action.

27. The Re-Amended Statement of Claim does not allege any specific interaction

between Brian Sinclair (or his estate) and Manitoba in relation to Mr. Sinclair's

attendance at the HSC ER. The claim as asserted against Manitoba rests solely on an

allegation, presumably arising out of Manitoba's statutory obligations under the Canada

Health Act and the RHAA, that Manitoba owed a duty to Brian Sinclair that the HSC ER

be adequately staffed and funded and that HSC ER staff had proper qualifications,

training and comportment to ensure his basic health needs were capable of being met.

(Whether such a duty even exists will be dealt with later in this argument. )


28. In an effort to turn what is in essence a negligence cla im into a personal action

based on public nuisance claim, the plaintiff now alleges in the Re-Amended Statement

of Claim that what happened to Brian Sinclair on September 19-20, 2008 happened on

a regular basis, especially to those who are vulnerable , indigent and Aboriginal , without

any material facts being pled to support such an allegation.

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29. However, it is improper pleadin9 to make bald allegations without any supporting

material facts. Pleadings should be struck that simply contain a "breadth of bald

allegations" without any supporting material facts. It is a basic rule of pleadings that

every pleading shall contain a concise statement of the material facts that a person

relies on in support of a claim and conclusions of law may only be pleaded if the

material facts in support of the claim are pleaded . As was stated by Dickson, C.J.C. in

Operation Dismantle v. Canada, [1985)1 S.C.R. 441 at paragraph 27:

... The rule that material facts in a statement of claim must be taken as true for the purposes of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true

30. Furthermore, as stated by Rosenberg J. in Region Plaza Inc. v. Hamilton-

Wentworth (Regional Municipality) [1990) O.J. No. 589 at p. 5:

Under Rule 25.06, the plaintiff must plead all material facts on which it relies and must plead all the facts which it must prove to establish a cause of action which is legally complete. If any material fact is omitted, the statement of claim is bad and the remedy is a motion to strike the pleading and not a motion for particular.

See also: Court of Queen 's Bench Rule 25.06(1) and (3); Ontario v. Gratton-Massuy Environmental Technologies Inc. 2010 ONCA 501 at paras. 99-109; Miguna v. Ontario (Attorney General) [2005] O.J. No. 5346 (Ont. CA) at paras. 15 and 18;\ Belanyk v. University of Toronto [1999] O.J. No. 2162 at para. 29; Pazkowski v.Cross Lake First Nation [1995] M.J. No. 454 (Master Bolton); Bergen v. Manitoba [1998] M.J. No.61 (Master Sharp) at para. 36-39

31 . Paragraph 68 of the Re-Amended statement of claim does not set out any new

"material facts" that would support the allegation that what happened to Mr. Sinclair

happened on a regular basis, especially to those who are vulnerable, indigent and

Aboriginal. The material facts set out in the Re-Amended Statement of Claim (see:

paragraphs 27 to 63 of the Re-Amended statement of claim, which have not in any way

been amended) relate only to Mr. Sinclair's circumstances and how he was treated at

the HSC ER.

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32. Originally paragraphs 68 and 69 of the statement of claim simply set out the

alleged breaches of an alleged duty care owed to Mr. Sinclair by Manitoba, or the

WRHA, to Mr. Sinclair in support of the claim for negligence. The surrounding material

facts in support of the alleged breaches of a duty care in negligence were , as stated , set

out in paragraphs 27-63 of the original Statement of Claim. Paragraph 68 now simply

alleges Manitoba knowingly created , contributed to or allowed unreasonable and

unabated interference with public safety without setting out any new material facts that

would support such an allegation. In addition, no additional material facts have been

pled that would indicate that what happened to Mr. Sinclair was happening on a regular

basis, especially to those who are vulnerable , indigent and Aboriginal.

33. While the plaintiff alleged in paragraph 73 of the Re-Statement of Claim that Mr.

Sinclair's death " ... followed a litany of preventable tragedies in the WRHA health care

institutions, and especially at the HSC ER and disproportionately involving Aboriginal

Patents, these allegations also are not supported by any material facts . (Note: this

paragraph has not been amended nor particularized in the Re-Amended Statement of

Claim).

34. Manitoba therefore submits that no material facts have been pled that would

- support the bald allegation that Manitoba caused or contributed to the death of Brian

Sinclair because it caused or allowed " .. . 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.

C. ALLEGATIONS OF PUBLIC NUISANCE AGAINST MANITOBA

35. No private nuisance was committed that affected the property of Mr. Sinclair or

his estate nor is alleged that the defendant WRHA has committed a public nuisance by

reason of the manner it has operated the HSC ER.

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36. What the plaintiff is alleging is that Manitoba created a public nuisance by

knowingly creating, contributing to or allowing unreasonable and unabated interference

with public safety (para . 64) which allegation is presumably predicated on the basis of

the allegation that Manitoba is responsible and accountable for emergency health care

delivered by hospitals (para. 14) and its allegation that Manitoba owed a duty of care to

Brian Sinclair.

37. The allegation that Mr. Sinclair was owed a duty of care was on the basis that he

individually as a vulnerable person was seeking and requiring care and Manitoba had a

duty to ensure the HSC ER was adequately funded and staffed and that its staff had the

proper qualifications, training and comportment to ensure his basic health care needs

were capable of being met (para. 66).

38. However, we now have the situation where the plaintiff apparently concedes

there was no breach of any duty owed to Mr. Sinclair individually because the plaintiff

has abandoned that part of the claim. However, at the same time, the plaintiff now

wants to file a public nuisance action without pleading any additional material facts that

would support the broad allegation that Manitoba has somehow allowed an unabated

situation to exist at the HCS ER that interfered with public safety generally that affected

Mr. Sinclair to the extent set in the Re-Amended Statement of Claim.

39. As was indicated by McLachlin J.(as she then was) in Stein v. Gonzales, " ... [t]he

common thread which runs through the authorities is that private citizens cannot

maintain actions for public nuisance where the suffering and inconvenience complained

of is shared by the public or a recognizable class of the public."

40. Moreover, as indicated by Professor Osborne in The Law of Torts, supra , at p.

381 when dealing with the remedies for public nuisance:

The conventional view in Canada is that greater damage of the same kind as that suffered by the public does not qualify as special and particular damage. A distinction has been drawn between harm that is merely of a greater degree than that suffered

16

by the general public and harm that is of a different kind from suffered by the general public'

41 . However, the plaintiff simply makes general allegations that Manitoba knew the

operation of the HSC ER was injurious to "public" health and in particular to the health

of vulnerable Aboriginal persons (see: para. 64) or that Manitoba knowingly allowed

created, contributed to or allowed an unreasonable and unabated interference with

"public" safety (see: para 68) , without pleading any material facts that would even

support an allegation that what was suffered by Mr. Sinclair was even experienced or

shared by the public as a whole or by a recognizable class, let alone that the plaintiffs

damages were of a different kind from suffered by the general public, as opposed to

simply being greater, so as to constitute a special damage.

42. Moreover, the legislative context that forms the basis of this public nuisance

claim against Manitoba is presumably based on either the Canada Health Act or the

RHAA. However, the obligations imposed on Manitoba under the Canada Health Act

are obligations imposed on Manitoba in order for Manitoba to receive contributions from

Canada. These obligations imposed on Manitoba are not obligations owed to the public

at large, but to Canada.

43. Furthermore, while the discretionary powers or duties exercised by the Minister

under the RHAA are powers exercised in the broader public interest and while

Manitoba provides funding for health services provided by the regional health

authorities, it is the regional health authorities under the RHAA that have the statutory

duty to deliver heath services within their region .

44. It is the regional health authorities that have the statutory duty to develop

objectives and priorities for the provision of health services to meet the health needs of

the region and to manage and allocate resources. (See: para. 23(b) of this Brief).

17

45. Although the plaintiff in the Re-Amended Statement of Claim simply repeats the

same broadly alleged joint failures on the part of both Manitoba and the WRHA in

terms of both policy and operational decisions that were made in the original statement

of claim, the allegations in paragraphs 68(a)-(f) of the Re-Amended Statement of Claim

all specifically relate to either policy and operational decisions relating to the HSC ER

that come within the responsibilities of the WRHA under the RHAA.

46. Furthermore, allegations of alleged failures to develop, to adopt or to implement

policies as set in paragraph 68((b) and (g) of the amended statement of claim do not, in

any event, trigger any common law duty. As McLachlin J. (as she then was) indicated

in Swinamer v. Nova Scotia (Attorney Genera~ [1994]1 S.C.R. 445 at 450, as cited in

Eliopoulos at paragraph 21 :

There is no private law duty on the public authority until it makes a policy decision to do something. Then, and only then, does a duty arise at the operational level to use care in carrying out the policy. On this view, a policy decision is not an exception to a general duty, but a precondition to the finding of a duty at the operational level.

47. Insofar as the allegation in paragraph 68(d) of the Re-Amended Statement of

Claim relates to funding allocated by Manitoba to the HSC ER. then such a funding

decision by Manitoba, even if such a specific funding allocation was made, is the type

of policy decision that would not create a private duty of care to any particular

individual nor does it create a public nuisance.

48. For the above reasons, Manitoba submits the amended statement does not

disclose a cause of action against Manitoba in public nuisance.

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V. RELIEF REQUESTED

49. Manitoba submits that the allegations in the amended statement of claim, as they

relate to the alleged public nuisance being created by Manitoba, be struck out, with

costs.

January 16, 2012 All of which is respe !fully submitted

w~:lf!Fjz Counsel for The Government of Manitoba

Documents

Grant v. WHRA Et Al - Province Brief 2