02/13/2012 11:26 EST | Updated 04/14/2012 05:12 EDT

Winnipeg health authority, province want family's lawsuit in ER death dismissed

WINNIPEG - Winnipeg's health authority and the province of Manitoba say a lawsuit filed by relatives of a homeless man who died during a 34-hour wait in a hospital ER is groundless and should be dismissed immediately.

Brian Sinclair's family alleges the defendants are responsible for his death because they violated his charter privacy rights and allowed the ER to operate even though it constituted a "public nuisance" to vulnerable, aboriginal patients.

Lawyers for the health authority say Sinclair's charter rights ended when he died of a treatable bladder infection at the Winnipeg Health Sciences Centre more than three years ago.

They told Master Shayne Berthaudin on Monday that the health authority has already paid out $110,000 in damages to the Sinclair family "to settle a portion of the lawsuit that dealt directly with the family’s claim for loss of care, guidance and companionship for his wrongful death."

"The Winnipeg Regional Health Authority has consistently acknowledged the role it played in the death of Brian Sinclair," the authority said in a statement. "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."

Part of the lawsuit involving the health authority has been dropped and the authority says the rest of the remaining claims are groundless. The health authority and the government are arguing the Charter of Rights and Freedoms doesn't allow relatives to pursue a claim on behalf of a deceased person.

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

The Sinclair family lawyers have called that argument "absurd, intolerable and cruelly ironic."

Provincial lawyers are also arguing the lawsuit should be thrown out because the government had no duty of care to the homeless man. Sinclair's family alleges the province allowed the Winnipeg ER to operate even though it constituted a "public nuisance" and was "injurious to public health."

Government lawyer Glenn McFetridge told the judge the family is accusing Manitoba of putting public safety at risk without backing up its "bald allegations" with proof. There is no evidence that what happened to Sinclair has happened to anyone else, let alone the public as a whole, he said.

"What is a public nuisance?" he told the court. "It is supposed to be something everybody as a whole would suffer."

Sinclair family lawyers say the onus is on the defendants to prove the family's case has no hope of succeeding and the lawsuit should go ahead because it is in the public interest. Lawyer Murray Trachtenberg said the case has "broad societal" implications that go beyond the family's right to compensation.

"He died sitting in that wheelchair. Mr Sinclair would have lived if he had been given the treatment he needed," Trachtenberg told the court as he outlined Sinclair's experience in the hospital ER.

"The fact that a person could sit in a wheelchair, getting progressively sicker and sicker, surrounded by modern conveniences just a few feet away, and ultimately die is appalling. This case continues to be an embarrassment to the Winnipeg Regional Health Authority and the government of Manitoba."

He scoffed at the idea that Sinclair's charter rights are no longer applicable. Using that reasoning, Trachtenberg said, had Sinclair only been seriously injured by his lack of treatment, he would have had a charter case.

"But if the injury is so egregious that the person ultimately dies, the state then comes to court and says, 'Never mind those charter rights.'"

Master Berthaudin reserved his decision.

Brian Sinclair's cousin, Robert, said he hopes the case is allowed to proceed so his family can finally have some answers.

"We want the truth," he said outside court. "That's it. At the end of the day, it's all about the truth."

Security tape showed Sinclair — a 45-year-old double amputee — went to the triage desk at the hospital and spoke to an aide before wheeling himself into the waiting room. About 33 hours later, someone approached a security guard to say it appeared Sinclair was dead.

He was rushed into a treatment area where emergency staff tried unsuccessfully to revive him.

An inquest has been called into his death but has been delayed by a criminal investigation.