Grant v Winnipeg Regional Health Authority

Background

This action relates to the death of Brian Lloyd Sinclair. Sinclair is a person of Aboriginal ancestry who was 45 years old at the time of his death and confined to a wheelchair because both of his legs had been amputated. He was also cognitively impaired and had difficulties with speech. Finally, he suffered from chronic illnesses including a seizure disorder, a kidney ailment and a neurogenic bladder. 

In 2008, Sinclair died in an emergency waiting room of the Health Sciences Centre in Winnipeg after spending 34 hours there without receiving any medical attention. He first attended a community health clinic complaining of abdominal pain, no urinary output in the last 24 hours and difficulties with his catheter. The attending physician was of the view that Sinclair's catheter was likely obstructed. As the procedure to unblock his catheter could not be conducted at the clinic, the physician wrote out a letter for Sinclair diagnosing the problem and the required treatment and arranged for a taxi to take Sinclair to the Centre's emergency department.

During Sinclair’s 34 hour wait at the Centre he slowly died from an infection of his bladder caused by the blocked catheter that would have been preventable had he received a timely change of his catheter and antibiotics. Closed-circuit television footage from the waiting room revealed that security staff, patients and visitors at the Centre all brought Sinclair’s deteriorating condition to the attention of medical staff, but staff failed to approach Sinclair in the waiting area until after he was already dead.

Sinclair’s sister, Ether Grant, commenced this action in response to the alleged disregard of Sinclair at the Centre leading up to his death, as well as the conduct of officials from the defendant regional health authority shortly after his death. Grant brought the action both on her own behalf and in her capacity as administrator of Sinclair’s estate.

Among the causes of action pleaded by Grant is an allegation that the regional health authority is liable for infringements of Sinclair’s rights under the Canadian Charter of Rights and Freedoms, citing ss. 7 (life, liberty and security of the person), 12 (not to be subject to cruel and unusual punishment) and 15 (equality). Grant brings this Charter claim in her capacity as administrator of Sinclair’s estate and seeks declaratory relief as well as damages. Another cause of action at issue in this appeal is an allegation that the defendants misused Sinclair’s personal medical information during statements to the media after his death.

Grant’s Charter claim was struck on the basis that she lacked standing because, in the motion judge’s view, death extinguished the right to seek redress for a violation of the Charter even when the violation allegedly contributed to this death. Grant’s claim for negligent disclosure of confidential information was struck on the basis that Grant could not bring this claim as a third party to Sinclair’s personal information.

Court of Appeal’s decision

The Court noted that the mere fact that the issues raised by Grant’s statement of claim were novel and complex did not provide a sufficient reason to strike her Charter claim. The Court found that Grant should have been granted public interest standing to pursue the serious constitutional issue of whether a claim for redress for a Charter violation is extinguished by the death of the individual whose rights were allegedly infringed, even when the Charter violation is alleged to have contributed to this individual’s death. In the Court’s view, the theory of Grant’s Charter claim constituted a “new endeavour” in an area where the law is still maturing. The Court also found that the two cases relied upon by the motion’s judge for rejecting the Charter claim were distinguishable on various points. In rejecting other arguments from the defendants for restricting Grant’s ability to bring Charter claims on Sinclair’s behalf, the Court expressed the view that “limits to the application of the Charter must come from the language of the Charter itself”.

Applying the test for public interest standing, the Court found that Grant ought to be granted this standing based on the premise that: a grant of standing would help clarify the serious issue of whether redress for a Charter violation ends on death in these circumstances; Grant was already pursuing a negligence claim in relation to the same factual matrix and has a real stake in the proceedings; there were no reasonable concerns that Grant could not adequately argue the constitutional issues raised in this claim if granted standing to do so; and it would be reasonable and effective for the Charter claim to proceed together with the negligence claim due to their common factual matrix. The Court of Appeal directed that the health authority’s application for a motion to strike return to the Court of Queen’s Bench to be determined afresh by a different judge.

A concurring judgment from another justice of the Court of Appeal addressed the issue of negligent disclosure of confidential patient information, coming to the similar conclusion that this claim remains an “open question” in the jurisprudence on privacy rights to date. As a result, it was held to be inappropriate for this claim to be dismissed at this early stage and this matter was also referred back to the Court of Queen's Bench.