03/20/2012 07:57 EDT | Updated 05/20/2012 05:12 EDT

Winnipeg court says man who died in ER has no case for its lawsuit

WINNIPEG - A Manitoba court judge has ruled that most of a lawsuit by the family of a man who died in a Winnipeg emergency room is groundless.

Brian Sinclair, a double amputee, died during a 34-hour wait in the ER of the Health Sciences Centre in 2008 from a treatable bladder infection.

Sinclair's lawyers had argued the Winnipeg Regional Health Authority and the province 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.

But Court of Queen's Court Master Shayne Berthaudin said in a written decision Tuesday that there was no evidence presented to back up those claims.

Berthaudin did rule that the family can sue the defendants for its out-of pocket costs for participating in a provincially called inquest.

Toronto lawyer Vilko Zbogar says Sinclair's family will appeal the decision.

"The court essentially said that because Brian Sinclair is no longer alive, there's nobody left who is alive who can pursue the claim for the breach of his right to life. Seems a little bit ironic in our view."

"The whole reason they are doing this is to make sure Brian's death is not in vain and they want to see things change and that's why they think it's so important to pursue these charter issues and the other issues that were struck out," he said.

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.

Security tape showed 45-year-old Sinclair went to the triage desk at the hospital and spoke to an aide before wheeling himself into the waiting room. About 34 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.

Manitoba Justice has handed the file over to Crown attorneys in Saskatchewan to review and recommend whether charges should be laid.