09/22/2014 10:58 EDT | Updated 11/22/2014 05:59 EST

Manitoba Appeal Court hears case of man who died waiting for ER care

WINNIPEG - The family of a man who died during a 34-hour wait in a Winnipeg emergency room is asking Manitoba's highest court to restore the heart of its lawsuit against the city's health authority.

Lawyer Murray Trachtenberg told three Appeal Court justices Monday that Brian Sinclair's charter rights were violated when he slowly died in a hospital waiting room in 2008.

Lower court judges struck down the heart of the family's lawsuit against the Winnipeg Regional Health Authority, saying Sinclair's charter and privacy rights died with him.

But Trachtenberg said it's absurd that a man who died because he didn't receive the care due him under the Charter of Rights and Freedoms isn't allowed to sue because he's dead.

"The breaches in question took place while Mr. Sinclair was alive," Trachtenberg told the court. "The alleged breaches are the very actions and inactions which caused his death and necessitate his personal representative to bring forward the claim as he is obviously incapable of doing so."

Sinclair, a 45-year-old double amputee, died of a treatable bladder infection caused by a blocked catheter while waiting for care at Winnipeg's Health Sciences Centre.

Although Sinclair spoke to a triage aide when he first arrived at the emergency room, he was never formally entered into the hospital's system. He languished in the waiting room for hours, growing sicker and vomiting several times, but was never asked if he was OK or waiting for care.

By the time Sinclair was discovered dead, rigor mortis had set in.

An inquest into his death heard many employees assumed he was drunk, seeking shelter or had been seen and was waiting for a ride.

The Winnipeg Regional Health Authority has argued the Charter of Rights and Freedoms doesn't allow relatives to pursue a claim on behalf of a dead person.

That interpretation means the health authority won't be held to account, Trachtenberg said.

"If a state authority, by breaching someone's rights contrary to the charter, causes the death of that person ... no one is able to hold that state authority accountable," he said. "That is intolerable ... and contrary to the whole spirit of the charter."

Justice Chris Mainella challenged the lawyer for the health authority, pointing out that if Sinclair had ended up in a coma, his family would have been entitled to sue based on his charter rights.

"He's dead so there is nobody," Mainella said.

But Kelly Dixon, lawyer for the health authority, said the Supreme Court of Canada is clear on this issue.

"These are rights that are personal," she said. "The estate does not have the standing to advance the claim under the charter. They terminate on death."

Even if the lower courts had not agreed and allowed the lawsuit to remain intact, Dixon said the health authority would have argued Sinclair's charter rights were not violated. The allegations are better characterized as a claim of medical negligence rather than a charter violation, she said.

The Sinclair family also argued the health authority was negligent when it said Sinclair didn't approach the triage desk shortly after his death came to light. Lawyer Vilko Zbogar argued the release of that information was harmful to Sinclair's family and negligent on the part of health officials.

But Dixon said Sinclair's family shouldn't be allowed to bring that allegation to trial because the health authority did not have a duty of care to Sinclair's family.

"It's not the estate's privacy at issue," she said. "It is the privacy of Mr. Sinclair."

The Appeal Court justices reserved their decision and did not say when a ruling would be released.

The health authority has 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 authority said in a 2012 court hearing.

If the appeal is denied, Sinclair family lawyers say they can still pursue the health authority for costs incurred by his relatives for participating in the inquest, as well as for compensation for pain and suffering caused by his death.