File No.

CI 10-01-68315
BETWEEf\J:
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 TORRES-
CERECEDA, HONORA KEARNEY, VAL HIEBERT, TODD
TORFASON, LORI STEVENS, JORDAN LOECHNER,
JANE DOE and JOHN DOE
MOTION BRIEF OF THE DEFENDANT, THE
GOVERNMENT OF MANITOBA
MANITOBA JUSTICE MANITOBA JUSTICE
Constitutional Law
Plaintiff,
Defendants.
Civil Legal Services (S.O.A.)
per: W. Glenn McFetridge
General Counsel
per: Heather S. Leonoff, O.C.
Director
7th Floor, 405 Broadway
Winnipeg, Manitoba R3C 3L6
Telephone No.: 945-2843
Fax No: 948-2826
File No.: HE21AO(12)
1205-405 Broadway
Winnipeg, Manitoba R3C 3L6
Telephone: 945-0717
Fax. No: 945-0053
(i)
IN DE X
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 ........................................................................... 3-19
I. INTRODUCTION ................................................................................ 3
II. BACKGROUND .................................................................................. 4-7
III. LEGISLATION .................................................................................... 7-8
IV. NEGLIGENCE CLAIM AGAINST MANITOBA. .................................... 9-14
V. CHARTER CLAIMS AGAINST MANITOBA ....................................... 14-18
A. Standing ........................................................................................ 15-16
B. No Reasonable Cause of Action - Section 7 ................................. 16-17
C. No Reasonable Cause of Action - Section 12 .............................. 17-18
D. No Reasonable Cause of Action - Section 15 .............................. 18
VI. RELIEF REQUESTED ........................................................................ 19
PART I
LIST OF DOCUMENTS TO BE RELIED ON
1. Statement of Claim filed on September 27,2010
2. Notice of Motion filed November 17, 2010;
PART II
LIST OF AUTHORITIES TO BE RELIED ON
AUTHORITIES
MANITOBA WRHA
TAB TAB
I. LEGISLATION
Court of Queen's Bench Rule 25(11 )(d) ....................................................... 1
Canada Health Act, R.S.C. 1985, c. C-6, .s. 4, 5 and 7 .......... 1
The Regional Health Authorities Act, C.C.S.M. c. R34 ............ 2
The Canadian Charter of Rights and Freedoms
s. 7, 12, 15 and 24 ...................................................................................... 7
II. CASELAW (in order cited)
Dumont v. Canada (Attorney General), [1990]
1 S.C.R. 279.1990 Can Lli 131 (S.C.C.) ................................ 3
Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at para. 33,
1990 CanL11 ................................................................................................ 2
Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2 ....................... .4
Cooperv. Hobart, [2001] 3 S.C.R. 537 ................................... 5
Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. .. 6
2
AUTHORITIES
MANITOBA WRHA
TAB TAB
Syl Apps Secure Treatment Centre v. B.D., [2007]
3 S.C.R. 83 ............................................................................ 7
Eliopoulos Estate v. Ontario (Minister of Health and
Long Term Care), 2006 CanLiI 37121 (ON C.A.)
leave to appeal denied by SCC [2006] S.C.C.A. No. 514 ....... 8
Attis v. Canada (Minister of Health), (2008) 93 O.R. (3d)
35 (Ont. C.A.), leave to appeal denied by SCC [2008]
S.C.C.A.No. 491 ...................................................................... 9
Williams v. Ontario, 2009 ONCA 378 (CanLlI) ....................... 10
Jamal Estate v. The Scarborough Hospital,
2009 ONCA 376 (CanLlI) ....................................................... 11
Abarquez v. Ontario, 2009 ONCA 377 (CanLlI) ..................... 12
Mitchell Estate v. Ontario, 2004 CanLll4044 (On S.C. D.C.) .. 13
Canada (AG.) v. Hislop, [2007] 1 S.C.R. 429,2007 SCC 10 ...................... 8
Giacomelli Estate v. Canada, 2008 ONCA 346 ............................................ 9
Richardson Estate v. Coleman, 2006 SKQB 379 .................... 14
Wilson Estate v. Canada, 1996 CanLiI 2417 (BCSC) ............ 15
Chaoulli v. Quebec (AG.), [2005] 1 S.C.R. 791,
2005 SCC 35 at para. 199 ...................................................... 16
Rodriguez v. British Columbia (A G.), [1993]
3 S.C.R. 519 at 612 ................................................................. 17
Little Sisters Book and Art Emporium v. Canada
(Minister of Justice), [2000] 2 S.C.R. 1120,
2000 SCC 69 at 1189 ............................................................. 18
3
PART III
BRIEF OF ARGUMENT
I. 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 claim as they relate to Manitoba on that basis that:
a. the allegations in tort for negligence against Manitoba do not disclose a
reasonable cause of action;
b. the plaintiff lacks standing to seek remedies under the Canadian
Charter of Rights and Freedoms to seek the declaration requested in
paragraph 1(a) that Brian Sinclair's rights under ss. 7, 12 and 15 of the
Canadian Charter of Rights and Freedoms ("Charter") were violated and lacks
standing to claim the damages sought in paragraphs 1 (b)(ii) and (iv); and
c. in the alternative, the alleged breaches of the Charter detailed in
paragraphs 78-93 disclose no reasonable cause of action.
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
4
II. BACKGROUND
4. This action has been filed by the plaintiff, as the administrator of the estate of
Brian Lloyd Sinclair ("Brian Sinclair").
5. It is alleged that Brian Sinclair complained of abdominal pain, a catheter problem
and lack of urinary output for over 24 hours for which he attended a community heath
clinic on September 19, 2008 at about 2: 15 p.m.
Amended Statement of Claim, para. 31
6. It is alleged that 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.
Amended Statement of Claim, para. 2 and para. 31
7. It is alleged that 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.
Amended Statement of Claim, para. 3 and para. 39-45
8. The defendant, The Government of Manitoba ("Manitoba") has been named as a
defendant in this action pursuant to The Proceedings Against the Crown Act as
representing Her Majesty the Queen in Right of the Province of Manitoba.
Amended Statement of Claim, para. 14
5
9. It is 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.
Amended Statement of Claim, para. 15
10. It is alleged that the defendant, the Winnipeg Regional Health Authority
("WRHA"), the defendant ER medical staff and Manitoba were negligent in causing
Brian Sinclair to needlessly suffer in pain during the 34 hours he was in the HSC ER
waiting room
Amended Statement of Claim, para. 64
11. It is alleged that Manitoba and the WRHA owed a duty to Brian Sinclair to ensure
that the HSC ER was adequately funded and staffed and that the HSC staff had the
proper qualifications, training and comportment to ensure that his basic health care
needs were capable of being met.
Amended Statement of Claim, para. 66
12. It is alleged that" ... the standard of care required in the circumstances was one of
a provincial government and of a sophisticated Regional Health Authority, operating and
responsible for health services in a major urban area and of highly trained emergency
room medical staff functioning in an adequately funded and properly administered
hospital emergency department".
Amended Statement of Claim, para. 67
6
13. It is alleged that both Manitoba and the WRHA breached their duty of care owed
to Brian Sinclair as particularized in paragraph 68 of the amended statement of claim,
which included failing to fund and resource the HSC ER.
Amended Statement of Claim, para. 68(d)
14. It is alleged that "Brian Sinclair's death followed a litany of preventable tragedies
in WRHA health care institutions and especially at the HSC ER and disproportionately
involving Aboriginal patients" and that Manitoba and the WRHA owed a duty to Brian
Sinclair " ... to take proper actions to identify the root causes of these problems and to
take affirmative remedial actions to remedy same."
Amended Statement of Claim, paras. 73 and 74
15. In terms of the Charier allegations against Manitoba, the plaintiff has asked for a
declaration that all defendants breached Brian Sinclair's Charter rights under s. 7. s. 12
and s. 15. The plaintiff has also asked for damages against all defendants under s.
24( 1) of the Charter.
Amended Statement of Claim, para. 1 (a) and 1 (b)(ii) and (iv)
16. In terms of any alleged breach of s. 7, although the plaintiff in paragraph 1 (a) of
the amended statement of claim has asked for a declaration that "all" the plaintiffs
breached Brian Sinclair'S s. 7 Charier rights, the alleged breaches of s. 7 of the Charier
as set out in paragraphs 79-82 of the amended statement of claim are either directly or
by implication made against the WRHA and HSC ER staff. However, the plaintiff also
makes the allegation in paragraph 83 that all defendants' " ... actions, and their failure to
act, while Brian Sinclair was in their care, constituted a grave offence to Mr. Sinclair's
human dignity, self-respect and self-worth, and needlessly deprived him of his life."
7
17. In terms of the alleged breaches of s. 12 of the Charier, the allegations made in
paragraphs 84-87 of the amended statement of claim do not specifically name any
defendant, but relate to events that occurred at the HSC and treatment provided at the
HSC. However, the plaintiff also makes the allegation in paragraph 87 that " ... the
defendants' cruel and unusual treatment of Brian Sinclair was even more egregious
because of Brian Sinclair's various vulnerabilities, disabilities and impairments.
18. In terms of the alleged breaches of s. 15 of the Charier, the allegations made in
paragraphs 88-93 of the amended statement of claim are not specifically directed
against any defendant, but in substance appear to relate to activities that took place at
the HSC.
III. LEGISLATION
19. In support of the allegations made in the amended statement of claim, the
plaintiff relies on the Canada Health Act, R.S.C. 1985, c.C-6, The Regional Health
Authorities Act, C.C.S.M. c. R34 ("RHAA") , as well as sections 7, 12, 15 and 24 of the
Charier.
Amended Statement of Claim, para. 112
20. 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.
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));
8
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.
21. 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.
22. 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;
b. comprehensiveness;
c. universality;
d. portability; and
e. accessibility.
Canada Health Act,s. 4, 5.5 and 5.7
9
IV. NEGLIGENCE CLAIM AGAINST MANITOBA
23. The issue is whether Manitoba, on the facts as pleaded, owed any private duty of
care to Brian Sinclair.
24. The amended statement of claim does not allege any specific interaction
between Brian Sinclair and Manitoba in relation to his attendance at the HSC ER. The
claim as asserted against Manitoba rests solely on an alleged duty of care arising out of
Manitoba's statutory obligations under the Canada Health Act and the RHAA
25. The Supreme Court of Canada in Kamloops (City) v. Nielsen reaffirmed that in
order to establish a duty of care, foreseeability alone was not enough, but in addition the
circumstances of a case must disclose sufficient proximity to justify the imposition of
liability, followed by a consideration of whether there were any factors that negativing
that duty of care. In Kamloops the Supreme Court advanced the two-stage test utilized
by the House of Lords in Anns v. Merton London Borough Council for determining
whether a duty of care exists. This two-stage test was reaffirmed and refined by the
Supreme Court in Cooper v. Hobart and Edwards v. Law Society of Upper Canada.
Kamloops (City) v. Nielsen, [1984] 2 S.C.R. 2; Cooper v. Hobart,
[2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada,
[2001] 3 S.C.R
26. Both Cooper and Edwards also indicated that the question of whether a
defendant owes a primary facie duty of care is a question of law that can properly be
decided on a motion to strike.
27. In Cooper, the Supreme Court described the proximity analysis that is required in
the first stage of the two-stage test as follows at paras. 30-31:
The proximity analysis involved at the first stage of the Anns test
focuses on factors arising from the relationship between the
plaintiff and the defendant. These factors include questions of
policy, in the broad sense of that word. If foreseeability and
10
proximity are established at the first stage, a prima facie duty of
care arises. At the second stage of the Anns test, the question
still remains whether there are residual policy considerations
outside the relationship of the parties that may negative the
imposition of a duty of care ....
On the first branch of the Anns test, reasonable foreseeability of
the harm must be supplemented by proximity. The question is
what is meant by proximity. Two things may be said. The first is
that "proximity" is generally used in the authorities to characterize
the type of relationship in which a duty of care may arise. The
second is that sufficiently proximate relationships are identified
through the use of categories. The categories are not closed and
new categories of negligence may be introduced. But generally,
proximity is established by reference to these categories. This
provides certainty to the law of negligence, while still permitting it
to evolve to meet the needs of new circumstances. [Emphasis in
original.]
28. In Syl Apps Secure Treatment Centre v. B.D. the Supreme Court indicated that when
the relationship occurs in the context of a statutory scheme, you have to look at the legislation in
question to assess the degree of proximity between the parties. As stated by Abella J.:
27 When the relationship occurs in the context of a
statutory scheme, the governing statute is a relevant context for
assessing the sufficiency of the proximity between the parties
(Cooper, at para. 43; Edwards, at para 9). As this Court said in
Edwards: "Factors giving rise to proximity must be grounded in the
governing statute when there is one" (Para. 9).
Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83
29. Manitoba submits that neither the Canada Health Act nor the RHAA create any
private law duty of care between a private citizen and Manitoba due to the lack of
proximity between the parties,.
30. 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 obligations owed to the public at
large.
11
31. Similarly, the discretionary powers or duties exercised by the Minister under the
RHAA are powers exercised in the broader public interest. They do not create a duty of
care to any particular individual.
32. Although Manitoba provides funding for health services provided by the regional
health authorities, the regional health authorities under the RHAA have the statutory
duty to deliver heath services within their region.
33. The regional health authorities 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.
34. The allegations made against Ontario in Eliopoulos Estate v. Ontario (Minister of
Health and Long- Term Care) are very similar in nature to the allegations made against
Manitoba in this case. In Eliopoulos, the Ontario Court of Appeal had to determine
whether a public health authority owed a private duty of care to an individual or a class
of individuals to take reasonable steps to prevent the spread of the West Nile Virus.
The plaintiff had been bitten by a mosquito infected with the virus and died. His estate
sued the Government of Ontario in negligence alleging Ontario could and should have
prevented the outbreak. The Court concluded that it was plain and obvious on the facts
as plead that Ontario did not owe a private duty of care to the plaintiff.
Eliopoulos Estate v. Ontario (Minister of Health and Long Term
Care), 2006 CanLII 37121 (ON C.A.), leave to appeal denied by
SCC [2006] S.C.C.A. No. 514;
See also: Attis v. Canada (Minister of Health), (2008) 93 O.R. (3d)
35 (Ont. C.A.), leave to appeal denied by SCC [2008] S.C.C.A.
No. 491; Williams v. Ontario, 2009 ONCA 378 (CanLlI); Jamal
Estate v. The Scarborough Hospital, 2009 ONCA 376 (CanLlI);
Abarquez v. Ontario, 2009 ONCA 377 (CanLlI); Mitchell Estate v.
Ontario, 2004 CanLiI 4044 (On S.C.D.C.)
12
35. In coming to its conclusion that no private duty of care was owed by the
Province of Ontario to the plaintiff in Eliopoulos, the Ontario Court of Appeal reviewed
the statutory duty imposed on Ontario under the Health Protection and Promotion Act,
R.S.O. 1990, c. H.7 (U HPPA ") to prevent conditions which may put the health of
Ontarians at risk and to provide early detection of health problems. The Court after
reviewing the statutory duties imposed on Ontario under the HPPA concluded:
[14] The respondents assert that proximity can be made out on
the basis of Ontario's statutory duty to safeguard the health of its
residents. According to their factum, the respondents "rely solely
on the provisions" of the HPPA as the source of the duty of care.
Accordingly, as in Cooper, in this case the statute is the only
p o s s i b l ~ source for a duty of care. I agree with Ontario's
submission that as the duty issue rests solely on an interpretation
of the HPPA, as in Cooper and Edwards v. Law Society of Upper
Canada, 2001 SCC 80 (CanLlI), [2001] 3 S.C.R. 562, the question
of whether Ontario owes the respondents a prima facie duty of
care is a question of law that can properly be decided on a Rule
21 motion.
[17] In my view, these important and extensive statutory
provisions create discretionary powers that are not capable of
creating a private law duty. The discretionary powers created by
the HPPA are to be exercised, if the Minister chooses to exercise
them, in the general public interest. They are not aimed at or
geared to the protection of the private interests of specific
individuals. From the statement of purpose in s. 2 and by
implication from the overall scheme of the HPPA, no doubt there
is a general public law duty that requires the Minister to endeavour
to promote, safeguard, and protect the health of Ontario residents
and prevent the spread of infectious diseases. However, a
general public law duty of that nature does not give rise to a
private law duty sufficient to ground an action in negligence. I fail
to see how it could be possible to convert any of the Minister's
public law discretionary powers, to be exercised in the general
public interest, into private law duties owed to specific individuals.
Although Mitchell (Litigation Administrator of) v. Ontario 2004
CanLiI 4044 (ON S.C. D.C.), (2004), 71 O.R. (3d) 571 (Div. Ct.),
was concerned with a different statute, I agree with and adopt
Swinton J.'s analysis at paras. 28 and 30 as applicable to the
present case:
[T]he governing statutes make it clear that the
Minister has a wide discretion to make policy
decisions with respect to the funding of hospitals.
The legislative framework gives the Minister the
13
power to act in the public interest, and in exercising
her powers, she must balance a myriad of
competing interests. The terms of the legislation
make it clear that her duty is to the public as a
whole, not to a particular individual.
[A] consideration of the statutory framework makes
it clear that the requisite proximity in the
relationship between the plaintiffs and the
defendant has not been established so as to give
rise to a private law duty of care. The overall
scheme of the relevant Acts confers a mandate on
the Minister of Health to act in the broader public
interest and does not create a duty of care to a
particular patient.
36. Similarly in Abarquez, the Ontario Court of Appeal had to deal with the issue of
whether nurses who had contracted SARS during an outbreak of this illness could sue
the Ontario for negligence and breaches of the plaintiffs's. 7 Charter rights. The
allegations against the Ontario Ministry of Health and Long Term Care were that the
Ministry failed to provide timely information about SARS; that Directives issued to
hospitals by the Ministry were inadequate and that the Ministry failed to ensure nurse's
health and safety in the hospitals. The Court in finding the Ministry owed no private
duty of care to the nurses stated:
[28] In the present case, the potential for conflict is obvious.
Health care workers are already Significantly at risk when it comes
to containing an infectious disease. As the plaintiff nurses point
out, they were legally required to treat SARS patients and, given
the nature of that disease, they were thereby exposed to the risk
of contracting the disease. To impose a private law duty of care
upon Ontario to safeguard the health of the nurses would conflict
with the overriding public law duty to pronounce standards that are
in the interest of the public at large. Simply put, the interests of
nurses, like the interest of investors in Cooper, the clients in
Edwards and the parents in Syl Apps, cannot be prioritized over
the general public interest, yet that would be the effect of finding
that they were owed the special consideration in the formulation of
health care policy that a private law duty of care would entail.
[29] While Ontario was obliged to do its best to protect the
public at large from the spread of SARS, this claim rests on the
untenable proposition that Ontario owed the individual plaintiffs a
14
general common law duty of care affording them the right to sue
for damages as a result of contracting SARS ....
37. Although the plaintiff in the amended statement of claim has broadly alleged
joint failures on the part of both Manitoba and the WRHA in terms of both policy and
operational decisions, the allegations in paragraphs 68(a)-(f) of the 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.
38. 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 of care. As McLachlin J. (as she then was)
indicated in Swinamer v. Nova Scotia (Attorney Generan [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.
39. Insofar as the allegation in paragraph 68(d) of the 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.
40. For the above reasons, Manitoba submits the amended statement does not
disclose a cause of action against Manitoba in negligence.
V. CHARTER CLAIMS AGAINST MANITOBA
41. Manitoba submits all paragraphs of the amended statement of claim that seek
remedies under the Charter should be struck out on the basis that the plaintiff lacks
15
standing to pursue these actions. More particularly, Manitoba submits that the plaintiff
lacks standing to seek the declaration requested in paragraph 1 (a) that Brian Sinclair's
rights under ss. 7, 12 and 15 of the Charter were violated and that she lacks standing to
claim the damages sought in paragraphs 1 (b)(ii) and (iv).
42. In the alternative, Manitoba submits that the alleged breaches of the Charter
detailed in paragraphs 78-93 disclose no reasonable cause of action.
A. Standing
43. The plaintiff sues as the administrator of the estate of Brian Sinclair. The
Statement of Claim alleges that Manitoba breached Brian Sinclair's rights under ss. 7,
12 and 15 of the Charter.
44. Canada (A.G.) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10 is binding authority
from the Supreme Court of Canada that an estate has no standing to pursue a claim for
breach of s. 15(1) of the Charter. At paragraph 73, the Court stated:
In the context in which the claim is made here, an estate is just a
collection of assets and liabilities of a person who has died. It is not
an individual and it has no dignity that may be infringed. The use of
the term "individual" in s. 15(1) was intentional. For these reasons,
we conclude that estates do not have standing to commence s.15 (1)
Charter claims. In this sense, it may be said that s.15 rights die with
the person.
45. The Ontario Court of Appeal in Giacomelli Estate v. Canada, 2008 ONCA 346,
leave to appeal to SCC refused 32690, (September 25, 2008) determined that the
reasoning in Hislop, applied equally to claims under s. 7 of the Charter. The Court
concluded at paragraph 18 that "as a matter of law, [Charter claims], do not survive [the
plaintiff's] death." See also: Richardson Estate v. Coleman, 2006 SKQB 379; Wilson
Estate v. Canada, 1996 CanLiI 2417 (SCSC).
16
46. The Charter seeks to protect "everyone" in ss. 7 and 12 and "every individual" in
s. 15. In the same manner that an estate has no dignity that can be infringed, an estate
cannot be deprived of the right to life, liberty and security of the person. Nor can an
estate be subjected to cruel and unusual treatment or punishment.
47. Manitoba therefore submits that the relief claimed in paragraphs 1 (a), 1 (b)(ii) and
1 (b)(iv) be struck on the basis that the plaintiff lacks the standing to advance the claim.
B. No Reasonable Cause of Action - Section 7
48. The plaintiff asserts in paragraph 78 of the Statement of Claim that s. 7 of the
Charter provides that everyone has the right to life, liberty and security of the person. In
paragraph 1 (a), the plaintiff seeks a declaration that Brian Sinclair's right to life, liberty
and security of the person was breached.
49. Manitoba submits that the plaintiff has mischaracterized the right that is protected
by s. 7 of the Charter. It does not guarantee a right to life, liberty and security of the
person. It guarantees a right not to be deprived of life, liberty and security of the person
except in accordance with the principles of fundamental justice.
50. By mischaracterizing the right protected by s. 7, the plaintiff has turned every tort
action, where a state actor is the alleged tortfeasor, and where there is some physical
harm, into a claim under s. 7. For example, if someone was to slip on a wet floor in the
courthouse and twist an ankle, the plaintiff would allege a violation of s. 7. Similarly, the
plaintiff alleges that every motor vehicle accident where the at-fault party is a
government employee constitutes a breach of s. 7. But such reasoning trivializes the
purpose of the constitutional protection.
51. The meaning of s. 7 was explained by Justices Binnie and LeBel, dissenting in
Chaoulli v. Quebec (A.G.), [2005] 1 S.C.R. 791, 2005 SCC 35 at paragraph 199:
Claimants whose life, liberty or security of the person is put at risk are
entitled to relief only to the extent that their complaint arises from a
breach of an identifiable principle of fundamental justice. The real
17
control over the scope and operation of s. 7 is to be found in the
requirement that the applicant identify a violation of a principle of
fundamental justice. The further a challenged state action lies from
the traditional adjudicative context, the more difficult it will be for the
claimant to make that essential link [emphasis in original].
52. Binnie and Lebel JJ. accepted that Quebec's prohibition on private health
insurance did amount to a deprivation of life and security but were unable to identify a
principle of fundamental justice that had been contravened. Thus, they determined
there was no breach of s. 7. Chief Justice McLachlin and Justice Major determined
that the Quebec law violated the principle against arbitrariness.
53. For the plaintiff to claim a breach of s. 7, the pleadings must disclose the
principle of fundamental justice that is alleged to have been breached and facts to
support a failure to comply with that principle. The pleadings in this case make no
mention of fundamental justice. Thus, it is submitted, they disclose no reasonable
cause of action.
C. No Reasonable Cause of Action - Section 12
54. The plaintiff claims in paragraphs 84-87 a breach of s. 12 of the Charter. As part
of the constitution of Canada, s. 12 deals with legal limits placed on government.
Government cannot pass laws or adopt policies that amount to cruel and unusual
treatment. In Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519 at 612, the
majority of the Supreme Court of Canada indicated that the concept of treatment
required that there be an "active state process in operation" involving "an exercise of
state control over the individual."
55. These two criteria, an active process and an exercise of control, are necessary to
ensure that "treatment" is limited to intentional decisions by government. Active
processes and exercises of control are consistent with deliberate acts and inconsistent
with negligence.
18
56. Manitoba therefore submits that the pleadings do not disclose a reasonable
cause of action because they fail to identify any law or policy that is alleged to be cruel
and unusual.
D. No Reasonable Cause of Action - Section 15
57. Manitoba submits that the plaintiffs claim for a breach of s. 15 set out in
paragraphs 88-93 discloses no reasonable cause of action. Section 15 guarantees
equality before and under the law and equal protection and equal benefit of the law. It
thus requires identification of a law that is alleged to violate the protections.
58. Section 15 is directed to legal status. For the plaintiff to allege a violation of
s. 15, she must allege that Brian Sinclair's legal status differed from those whom the
plaintiff alleges invite comparison. The pleadings are, however, silent as to legal status.
Rather, the pleadings allege acts personal to Mr. Sinclair. Personal actions of
discrimination are properly dealt with under the Human Rights Code but do not give rise
to a breach of s. 15.
59. Paragraph 92 of the pleadings state that the "treatment" Mr. Sinclair received
was different in its "purpose and effect" than others would have received. Paragraph 93
states that the unequal "treatment" amounts to a violation of s. 15. The jurisprudence
under s. 15, however, is directed at laws that are discriminatory on their face, laws that
are discriminatory in their effect and laws that are discriminatory in their application;
Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R.
1120, 2000 SCC 69 at 1189. There is no s. 15 jurisprudence that deals with an
individual's treatment.
60. Manitoba therefore submits that paragraphs 88-93 do not disclose a reasonable
cause of action.
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VI RELIEF REQUESTED
61. Manitoba submits that the allegations in the amended statement of claim, as they
relate to Manitoba, be struck out, with costs.
62. In that regard, Manitoba should also be deleted as a named defendant.
2011
. i
All of which is respectfully submitted
w. Glenn McFetridge