Grant v. Winnipeg Regional Health Date:, 2015 MBCA 44

Citation: Grant v. Winnipeg Regional Health Date: 20150504 Authority et al., 2015 MBCA 44 Docket: AI13-30-08070 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : ESTHER JOYCE GRANT (on her own ) behalf and in her capacity as ) administrator of the Estate of BRIAN ) LLOYD SINCLAIR) ) ) (Plaintiff) Appellant ) M. N. Trachtenberg and ) V. Zbogar - and - ) for the Appellant ) WINNIPEG REGIONAL HEALTH ) K. L.

Dixon AUTHORITY, BROCK WRIGHT, HEIDI ) for the Respondents GRAHAM, SUSAN ALCOCK, CATHY ) JANKE, JAN KOZUBAL, ELIZABETH ) Appeal heard: FRANKLIN, WENDY KRONGOLD, ) September 22, 2014 ROBERT MALO, HUGO ) TORRES-CERECEDA, HONORA ) Decision pronounced: KEARNEY, VAL HIEBERT, TODD ) May 4, 2015 TORFASON, LORI STEVENS, ) JORDAN LOECHNER, JANE DOE and ) JOHN DOE ) ) (Defendants) Respondents ) ) - and - ) ) THE GOVERNMENT OF MANITOBA ) ) (Defendants) ) Corrected Judgment: A corrigendum was issued on May 27, 2015; the corrections have been made to the text and the corrigendum is appended to this judgment. MAINELLA J.A.

Introduction and Issues [ 1 ] The plaintiff appeals the decision of the motion judge, dismissing an appeal from the decision of the Master, striking parts of an amended statement of claim as disclosing no reasonable cause of action (Queen’s Bench Rule 25.11(d), Man. Reg. 553/88 ). [ 2 ] The plaintiff is the sister of the late Brian Lloyd Sinclair (Mr. Sinclair) and the administrator of his estate. Mr. Sinclair, age 45, died in the emergency waiting room of the Health Sciences Centre (the HSC) after a prolonged stay there without receiving medical attention.

Subsequently, the plaintiff commenced an action on her own behalf, and also in her capacity as administrator, over the alleged disregard of Mr. Sinclair at the HSC leading up to his death, and the conduct of officials with the defendant, Winnipeg Regional Health Authority (the WRHA), shortly after his death. [ 3 ] One of several causes of action in the amended claim is an allegation that the WRHA is liable for infringements of

Mr. Sinclair’s rights under ss. 7 , 12 and 15 of the Canadian Charter of Rights and Freedoms (the Charter ) while he was alive and waiting for medical care at the HSC (the Charter claim). The Charter claim alleges that the breaches of Mr. Sinclair’s rights contributed to his death. The plaintiff brings the Charter claim in her capacity as the administrator of Mr.

Sinclair’s estate, and seeks relief for the estate in the form of constitutional damages and/or a declaration pursuant to s. 24(1) of the Charter . [ 4 ] The first of the two issues on this appeal involves public interest standing for the plaintiff in her capacity as administrator to advance the Charter claim.

The motion judge determined that she lacked standing to advance the Charter claim because, in his view, death extinguishes the right to seek redress for a violation of the Charter , even when the violation allegedly contributed to the death. [ 5 ] The other issue on this appeal involves a claim for the negligent disclosure of confidential information. In the amended claim against the defendants, the WRHA, Brock Wright, Heidi Graham, Jane Doe and John Doe (hereinafter called the disclosure defendants) the plaintiff, on her own behalf, seeks damages for the alleged misuse of Mr.

Sinclair’s personal medical information by hospital officials during statements to the media after his death. The motion judge determined that a third party cannot sue in negligence for the deliberate release of personal information of another person. [ 6 ] I would allow the appeal for the following reasons regarding the public interest standing for the plaintiff to advance the Charter claim, and also for the reasons of my colleague Monnin J.A., which I concur with entirely, on the claim arising from the disclosure of confidential information.

The Charter Claim Background Facts [ 7 ] The plaintiff’s lawsuit is in the pleadings stage. No statement of defence has yet been filed. The amended claim contains allegations only, not proven facts. However, in addressing the motion under Queen’s Bench Rule 25.11(d), the Master and the motion judge were required to accept the allegations pleaded as true and provable, unless it could be said that they were patently ridiculous or incapable of proof ( Soldier v. Canada (Attorney General) , 2009 MBCA 12 at para. 42 , 236 Man.R (2d) 107 ).

The following facts must therefore be accepted for the purpose of disposing of this appeal. [ 8 ] The WRHA is a corporation without share capital that operates under The Regional Health Authorities Act , C.C.S.M., c. R34. It is responsible for delivering and administering health services for the City of Winnipeg and surrounding areas. The WRHA operates a number of health care facilities, including the HSC, which is Winnipeg’s largest hospital. [ 9 ] Mr. Sinclair, a person of Aboriginal ancestry, was disabled. He was confined to a wheelchair because both his legs had been amputated.

He was also cognitively impaired and had difficulties with his speech. Finally, he suffered from chronic illnesses including a seizure disorder, a kidney ailment and a neurogenic bladder. [ 10 ] On the afternoon of September 19, 2008, Mr. Sinclair attended to a community health clinic operated by the WRHA complaining of abdominal pain, no urinary output in the last 24 hours and difficulties with his catheter. The attending physician was of the opinion that the catheter was likely obstructed. The procedure to unblock it could not be done at the clinic. The physician wrote out a letter for Mr.

Sinclair diagnosing the problem and the treatment he required. A taxi was arranged by clinic staff for Mr. Sinclair to be taken to emergency at the HSC. [ 11 ] Upon his entry to the HSC emergency waiting room, Mr. Sinclair became subject to closed-circuit television (CCTV). Mr. Sinclair approached the triage area medical staff, was seen by staff members, and then began waiting for medical care with others in the emergency waiting room. [ 12 ] Mr. Sinclair sat in the HSC emergency waiting room for 34 hours as he slowly died from an infection of his bladder, caused by the blocked catheter. Had Mr.

Sinclair received a timely change of his catheter and antibiotics, his condition would not have led to his death. [ 13 ] The CCTV footage of the HSC emergency waiting room revealed that during the 34-hour period, on multiple occasions, security staff, patients and visitors to the HSC brought Mr. Sinclair’s deteriorating condition to the attention of medical staff, without response. No medical staff at the HSC approached Mr. Sinclair in the emergency room waiting area until after he was already dead. [ 14 ] The plaintiff alleges in her amended claim that the treatment provided to Mr.

Sinclair was more than merely negligent, it was “cruel and discriminatory.” Motion to Strike Out the Charter Claim [ 15 ] In the amended claim, the Government of Manitoba (Manitoba), like the WRHA, was a defendant to the plaintiff’s Charter claim. Together with the WRHA, it moved before the Master to strike out the Charter claim as disclosing no reasonable cause of action on two grounds. [ 16 ] The two defendants argued that the plaintiff lacked standing to commence the Charter claim. In their view, any cause of action related to a potential breach of Mr.

Sinclair’s Charter rights ended with his death, because the rights were personal to him alone and not an asset of his estate. The two defendants also argued, in the alternative, that the facts alleged in the amended claim did not support a reasonable cause of action under the Charter for the remedies sought.

Decision of the Master [ 17 ] The Master agreed with Manitoba and the WRHA’s standing argument and struck out the Charter claim in its entirety pursuant to Queen’s Bench Rule 25.11(d). In explaining why he believed he was bound by jurisprudence from appellate courts on the lack of standing of a personal representative to commence a Charter claim, the Master stated (at para. 26): I am convinced, on the basis of the arguments of the WRHA and Manitoba, that it is plain and obvious that the plaintiff has no standing to pursue Brian Sinclair’s Charter claims.

In my view, the rationale of the Supreme Court of Canada in Hislop [2007 SCC 10 , [2007] 1 S.C.R. 429 ] and the Ontario Court of Appeal in Giacomelli Estate [2008 ONCA 346 , 236 O.A.C. 212 ] are clearly determinative of the issue. I do not read the Hislop decision as limiting the rationale of the Court to s. 15 claims involving survivor’s rights under pension plans, the subject matter of that case. [ 18 ] The Master declined to decide the second question of whether the facts alleged in the amended claim supported a reasonable cause of action under the Charter for the remedies sought.

Decision of the Motion Judge [ 19 ] The plaintiff’s appeal of the Master’s decision pursuant to Queen’s Bench Rule 62.01 was unsuccessful. The motion judge adopted the Master’s reasons as his own, and concluded that the Charter claim should be struck on the basis of the plaintiff’s lack of standing. In doing so, he stated (at para. 8): The language used by the Supreme Court of Canada in Hislop , could not be clearer. At para. 73 it stated: ... 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 individual.

The reasoning in Hislop was applied in Giacomelli to preclude an estate from pursuing a claim under s. 7 of the Charter . The court held that as a matter of law, a Charter claim under s. 7 does not survive the individual. [ 20 ] Like the Master, the motion judge declined to decide the second question of whether the facts alleged in the amended claim supported a reasonable cause of action under the Charter for the remedies sought. Nature of the Appeal [ 21 ] The plaintiff appeals the motion judge’s decision in relation to striking the Charter claim as against the WRHA, but not against Manitoba.

Manitoba is no longer a party to the action. [ 22 ] Whether the WRHA is a government entity, and therefore subject to the Charter , is not an issue on this appeal (see s. 32(1) of the Charter ; and Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component , 2009 SCC 31 at paras. 15-16 , [2009] 2 S.C.R. 295). Nothing in this appeal turns on whether the WRHA is a government entity, nor should my reasons be taken as offering an opinion in any future litigation of that issue.

Positions of the Parties Plaintiff [ 23 ] The plaintiff says this is an appropriate case for public interest standing to allow her to advance the Charter claim. [ 24 ] The plaintiff argues that acceptance of the idea that there can be no accountability for state conduct that infringes a Charter right of a person and contributes to their death, undermines the rule of law. In her view, the Charter claim raises a serious justiciable issue. She submits that she has a genuine interest in the issue as she is the administrator of Mr. Sinclair’s estate.

Finally, she says her pursuing the Charter claim is a reasonable and effective way of getting the issue of liability for Charte r breaches that contribute to death before the courts, as the factual matrix relevant to that issue will already be before the court as part of the negligence claim against the WRHA on behalf of Mr. Sinclair’s estate. [ 25 ] The plaintiff submits that the motion judge made essentially two legal errors in striking the Charter claim. [ 26 ] The first alleged error is one of misinterpretation of the case law. She says that the

interpretations given by the motion judge to the decisions of Canada (Attorney General) v. Hislop , 2007 SCC 10 , [2007] 1 S.C.R. 429 ; and Giacomelli v. Canada (Attorney General) , 2008 ONCA 346 , 236 O.A.C. 212 , leave to appeal to S.C.C. ref’d, [2008] S.C.C.A. No. 278 (QL), were too expansive. She argues that the motion judge ignored the context here that the amended claim alleges that Mr. Sinclair was alive when his Charter rights

were breached and those breaches contributed to his death. She submits that the motion judge’s views of Hislop and Giacomelli cannotbe reconciled with the subsequent Supreme Court of Canada decision in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28. [27] The second alleged error is one of misinterpretation of a claim for relief under s. 24(1) of the Charter. The plaintiffsays that such a cause of action has a broader purpose than a typical tort claim, and includes the objectives of vindication of rights anddeterrence of state actors.

She argues that the motion judge failed to appreciate the unique public nature of such a remedy. She submitshe failed to take the necessary generous approach to the question of the plaintiff’s standing, in applying the plain and obvious test, beforestriking out the Charter claim. The WRHA [28] The WRHA does not challenge the plaintiff’s right, as the administrator of Mr. Sinclair’s estate, to bring a lawsuit in tortfor negligence against it and the individual defendant nurses named in the amended claim, in relation to the care and attention Mr.Sinclair received at the HSC leading up to his death.

That aspect of the amended claim has never been challenged by the WRHA by amotion to strike. [29] However, the WRHA says that the same factual matrix for the negligence claim cannot also support the Charter claimbecause the latter falls outside the parameters of what is permitted by Manitoba’s survival legislation (s. 53(1) of The Trustee Act,C.C.S.M., c. T160 (the Act)). [30] The WRHA argues that the jurisprudence relied on by the Master and the motion judge is determinative that there is noserious justiciable issue that could warrant granting the plaintiff public interest standing.

The WRHA submits that the law is clear thatredress for violations of Charter rights end on the death of the affected person. Analysis and Decision Overview [31] The mere fact that the issues raised by the plaintiff are novel and complex is not reason to strike out the Charter claim(Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959 at 980).

As I will explain, in the circumstances of this case,the plaintiff should have been granted public interest standing to pursue the serious constitutional issue of whether redress for a violationof the Charter ends on death, even when the violation allegedly contributed to the death. It is necessary to reverse the motion judge fortwo reasons. [32] The motion judge erred in concluding that the decisions of Hislop and Giacomelli are determinative of the issue ofwhether redress for a violation of the Charter ends on death.

In my view, the circumstances of death are consequential to any existing orresulting Charter litigation. Neither Hislop nor Giacomelli was a situation where the alleged Charter violation occurred when thedecedent was alive and it is alleged that the Charter violation contributed to the death. [33] Also, the motion judge failed to properly consider, in deciding the motion to strike, that the Charter claim raisessocietal interests, such as vindication of Charter rights and deterrence of state actors. Test for Striking Out a Pleading [34] Queen’s Bench Rule 25.11(

d) provides: STRIKING OUT A PLEADING OR OTHER DOCUMENT 25.11 The court may on motion strike out or expunge all or part of a pleading or other document, with or without leave to amend, on theground that the pleading or other document, …. (

d) does not disclose a reasonable cause of action or defence. [35] The purpose of Queen’s Bench Rule 25.11(

d) is to ensure the effectiveness and fairness of the litigation process by theweeding out of hopeless claims or defences, without the necessity and cost of the full civil process (R. v. Imperial Tobacco Canada Ltd.,2011 SCC 42 at para. 19, [2011] 3 S.C.R. 45). Protracted proceedings are unnecessary if a pleading is substantively inadequate to makeout a claim or answer one (Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), (ON CA), 111 O.A.C.201 at paras. 8-10, 12 (C.A.)). [36] The remedy of striking out a pleading, however, is to be used sparingly.

It is reserved only for the “clearest of cases”(Ellett and Kyte v. Qualico Securities (Winnipeg) Ltd. et al. (1990), (MB CA), 64 Man.R. (2d) 318 at para. 6 (C.A.)). A claim or defence, or part thereof, should not be struck out unless the moving party demonstrates that it is “plain and obvious” that thecause of action or defence, as pleaded, is certain to fail (Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 15, [2003] 3 S.C.R. 263).

[37] On a motion to strike, the claim or defence should be read generously notwithstanding any imprecision in the languageused in it. Factors such as the novelty of a claim or defence, the length or complexity of the issues raised by it, or the likelihood that theopposing party has a strong position that will likely defeat the claim or defence are not reasons alone to strike out the pleading (Hunt atp. 980). If a claim or defence has a reasonable prospect of success, it should not be struck out (Imperial Tobacco Canada Ltd. at para.17; Driskell v.

Dangerfield et al., 2008 MBCA 60 at paras. 11-13, 228 Man.R. (2d) 116). [38] Caution before too quickly striking a claim for not disclosing a reasonable cause of action is particularly importantwhen the relief sought includes a remedy pursuant to s. 24(1) of the Charter for the alleged violation of constitutional rights by the state. In Henry v. British Columbia (Attorney General), 2015 SCC 24, Moldaver J. stated (at para. 35): Charter damages are a powerful tool that can provide a meaningful response to rights violations.

They also represent an evolving area ofthe law that must be allowed to “develop incrementally”: Ward, at para. 21. When defining the circumstances in which a Charterdamages award would be appropriate and just, courts must therefore be careful not to stifle the emergence and development of thisimportant remedy.

Standard of Review [39] Whether a pleading discloses a reasonable cause of action or defence is a matter of judicial discretion that, absent areversible error on fact or law, is entitled to significant deference on appeal unless the decision is so clearly wrong as to amount to aninjustice (Chrysler Canada Inc. v.

Eastwood Chrysler Dodge Ltd. et al., 2010 MBCA 75 at para. 24, 262 Man.R. (2d) 1). [40] However, I agree with the position taken by both parties on this appeal that the question of whether it is plain andobvious that redress for a violation of the Charter ends on death, even when the violation allegedly contributed to the death, raises anextricable point of law. Therefore, the standard of review of the motion judge’s decision to strike out the Charter claim is correctness(see Chrysler Canada Inc. at para. 24; and Young v.

Ewatski, 2012 MBCA 64 at paras. 32-33, 280 Man.R. (2d) 239, leave to appeal toS.C.C. ref’d, [2012] S.C.C.A. No. 440 (QL)). [41] The issue of whether redress for a violation of a Charter right ends on the death of the affected person, regardless of thecontext, is interrelated with the requirements of the law of standing as to whether the plaintiff has raised a serious justiciable issue for herto be granted public interest standing. The Law of Standing [42] As Cromwell J. explained in Canada (Attorney General) v.

Downtown Eastside Sex Workers United Against ViolenceSociety, 2012 SCC 45, [2012] 2 S.C.R. 524 (at para. 1): “The law of standing answers the question of who is entitled to bring a case tocourt for a decision.” [43] In a constitutional context, standing is not a simple procedural issue. Rather, “it is one intimately connected with theaccessibility of justice, recognition of legally protected interests and the definition of the appropriate role of the courts in society”(Thomas A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: The Carswell Co.

Ltd., 1986) at 92). [44] It is well established that the language of s. 24(1) of the Charter only provides remedies to individuals whose “own”rights have been infringed and not those of some third party (R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 at paras. 54-55; Benner v. Canada (Secretary of State), (SCC), [1997] 1 S.C.R. 358 at para. 78; and R. v. Ferguson, 2008 SCC 6 atpara. 61, [2008] 1 S.C.R. 96). [45] The plaintiff appropriately concedes that simply being a family member, as well as administrator of Mr.

Sinclair’sestate, does not give her a sufficient personal interest to challenge the alleged unconstitutional actions against Mr. Sinclair (Finlay v.Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607 at 618-24). To advance the Charter claim she requires anextraordinary basis, coming from either a statute or the common law. Survival Legislation [46] Provincial legislation does not assist the plaintiff. The survivor rights prescribed by The Fatal Accidents Act, C.C.S.M.,c. F50, benefit a deceased’s family members, not a deceased’s estate.

More relevant is s. 53(1) of the Act, which allows for certaincauses of action in tort to survive death for the benefit of a deceased’s estate: Actions by and against legal representatives 53(1) All actions and causes of action in tort, whether to person or property, other than for defamation, malicious prosecution, falseimprisonment, or false arrest, in or against any person dying continue in or against his personal representative as if the representativewere the deceased in life; but in any action brought or continued under authority of this

section by the personal representative of adeceased person for a tort causing the death of the person, the damages recoverable for the benefit of his estate do not include anyexemplary damages or damages for loss of expectation of life and shall be calculated without reference to any loss or gain to his estateconsequent on his death, except that a sum in respect of funeral expenses may be included.

[47] This can be contrasted with a jurisdiction such as England where since 1934, a personal representative has had standingto pursue on behalf of an estate “all causes of action” vested in a deceased at the time of his or her death, except as specifically excludedby the survival legislation (see s. 1(1) Law Reform (Miscellaneous Provisions) Act, 1934, 24 & 25, Geo. V, c. 41, (the 1934 Act); andAnderson v. Chasney, (MB CA), [1949] 4 D.L.R. 71 at 89-90 (Man. C.A.), aff’d, (SCC), [1950] 4D.L.R. 223 (S.C.C.)).

There has been a judicial reluctance to place limits on the broad statutory language in the 1934 Act of “all causesof action” (see Att.-Gen. v. Canter, [1939] 1 K.B. 318 at 328, 333 (C.A.)). [48] Survival legislation varies in Canada in terms of what causes of action survive death, for whom and what damages areavailable (MacLean et al. v. MacDonald, 2002 NSCA 30 at paras. 37-49, 201 N.S.R. (2d) 237).

For the purposes of this appeal I limitmy comments to the issue of causes of action that survive death for the benefit of an estate. [49] Survival legislation was first introduced in Manitoba in 1931 to allow for the survival of some causes of action in tortfor the benefit of an estate (see

An Act respecting Trustees, Executors and the Administration of Estates, S.M. 1931, c. 52, s. 48(1)). Before then, whether a cause of action survived a person’s death, for the benefit of their estate, was a function purely of the commonlaw. While causes in action in contract survived death, tort claims for personal injuries did not because of the much maligned commonlaw principle “that in a civil court the death of a human being cannot be complained of as an injury” (Admiralty Commissioners v.

S.S.Amerika, [1917] A.C. 38 at 42 (H.L.)), also described by the Latin maxim: actio personalis moritur cum persona (Anderson at p. 89). [50] Manitoba’s survival legislation was amended again in 1935 (see

An Act to amend “The Trustee Act,” S.M. 1935, c. 54,s. 1). The causes of action that a personal representative can bring in Manitoba, on behalf of an estate, has remained essentiallyunchanged since that 1935 amendment to the Act. Legislative attention since 1935 has focussed on the controversial issue of whatdamages are available for the deceased’s estate as opposed to what causes of action survive death (see Gayhart v. Registrar of MotorVehicles (1956), (MB CA), 6 D.L.R. (2d) 474 at 476-77 (Man.

C.A.); and the Manitoba Law Reform Commission,Report No. 35, Report on The Estate Claim for Loss of Expectation of Life (1979)). [51] Other Canadian jurisdictions have significantly more expansive survival legislation than Manitoba. A majority ofcommon law Canadian jurisdictions have survival legislation similar to the 1934 Act which, as previously mentioned, allows for allcauses of actions to survive for the benefit of a deceased’s estate, except as specifically excluded by the relevant survival legislation (seeAlberta – Survival of Actions Act, R.S.A. 2000, c.

S-27, s. 2; British Columbia – Wills, Estates and Succession Act, [SBC 2009] c. 13, s.150; New Brunswick – Survival of Actions Act, R.S.N.B. 2011, c. 227, s. 3; Newfoundland and Labrador – Survival of Actions Act,R.S.N.L. 1990, c. S-32, s. 2; Nova Scotia – Survival of Actions Act, R.S.N.S. 1989, c. 453, s. 2; Prince Edward Island – Survival ofActions Act, R.S.P.E.I. 1988, c. S-11, s. 4; Saskatchewan – The Survival of Actions Act, S.S. 1990-91, c.

S-66.1, s. 3; and the Yukon –Survival of Actions Act, RSY 2002, c. 212, s. 2). [52] The survival legislation in Ontario, the Northwest Territories and Nunavut is less restrictive than Manitoba, but not asexpansive as elsewhere (see the Trustee Act, R.S.O. 1990, c. T.23, s. 38; Consolidation of Trustee Act, R.S.N.W.T. 1988, c. T-8, s. 31 (asduplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28)).

These three jurisdictions allow for survival of certain causes ofaction in tort or “injuries to the person” for the benefit of a deceased’s estate. [53] Under the Civil Code of Québec, S.Q., 1991, c. 64, the law of succession provides that a right of action for an unlawfulinterference against a person is transmitted to his or her heirs on death (see de Montigny v. Brossard (Succession), 2010 SCC 51 at para.63, [2010] 3 S.C.R. 64; and Ronald I.

Cohen, “The Transmissibility of Damage Claims” (1970), 16 McGill L.J. 676). [54] The concept of a cause of action for a breach of a Charter right leading to a remedy pursuant to s. 24(1) of the Charteris a “new endeavour” where the law is still maturing (Ward at paras. 21, 33). The Manitoba legislature has not re-examined the survivallegislation in Manitoba in light of developments in the law, like the coming into force of the Charter, the Ward decision and the differentapproaches taken in other jurisdictions in the modern era regarding which causes of action survive death.

It is not for the judiciary to saywhether the legislature should engage in law reform on this issue or not. What can be said, however, is that the law in Manitobacurrently is that, unless a personal representative meets the common law criteria of public interest standing, no Charter claim can bebrought on behalf of a deceased for the benefit of his or her estate.

Public Interest Standing [55] The criteria of public interest standing require a purposive and flexible evaluation of the interrelated factors of: whetherthere is a serious justiciable issue, whether the plaintiff has a real stake or genuine interest in it, and, in all the circumstances, theproposed suit is a reasonable and effective way to bring the issue before the courts (Downtown Eastside Sex Workers at para. 37; andManitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 43, [2013] 1 S.C.R. 623).

While the determinationof public interest standing is a cumulative evaluation of these factors, the first criterion is the key dispute in this appeal. [56] In coming to my decision in this appeal, I acknowledge that it has been suggested that the language of s. 24(1) of theCharter creates “stricter” requirements for public interest standing as opposed to when the remedy is sought under s. 52(1) of theConstitution Act, 1982 (Peter W.

Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada Limited, 2007)(loose-leaf revision 2014-1) vol. 2 at 40-29). [57] That view, however, is not universally shared. Prior to the Charter, where there was a justiciable public law issue, theSupreme Court of Canada lowered the bar to standing to ensure judicial review of government action via the remedy of a declaration(Thorson v. Attorney General of Canada et al., (SCC), [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, (SCC), [1976] 2 S.C.R. 265; and Minister of Justice of Canada et al. v. Borowski, (SCC), [1981] 2S.C.R. 575).

Professor Cromwell, as he then was, and Justice Strayer argue that s. 24(1) of the Charter should not be interpreted torestrict the court’s discretion to grant public interest standing in actions seeking a declaration, as discussed in Thorson, McNeil andBorowski (Cromwell at pp. 100-102); and Barry L. Strayer, The Canadian Constitution and the Courts: The Function and Scope ofJudicial Review, 3d ed. (Toronto: Butterworths, 1988) at 185-86). I agree. [58] The law on public interest standing emphasizes regard to a purposive approach, respect for the principle of legality and

the wise application of judicial discretion (Downtown Eastside Sex Workers at para. 21).

I am satisfied that, given the context of thiscase, where the Charter claim includes seeking relief in the form of a declaration, the test discussed in Downtown Eastside Sex Workers(at para. 37) for granting public interest standing appropriately deals with the question of whether the plaintiff should be permitted topursue the Charter claim or not. [59] The first question to consider in reviewing the motion judge’s decision on the plaintiff’s standing to advance theCharter claim is whether he was correct that the Hislop and Giacomelli decisions make it plain and obvious that redress for a violationof the Charter ends on death, even when the violation allegedly contributed to the death.

As I will explain, although novel and complex,this is a serious justiciable issue. Applicability of Hislop and Giacomelli [60] It is well established that, central to the

interpretation of the Charter and its limits, is the context in which a claim forrelief under it arises (R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154 at 226; and R. v. Jarvis, 2002 SCC73 at para. 63, [2002] 3 S.C.R. 757).

In the case of a remedy pursuant to s. 24(1) of the Charter, “[w]hat is appropriate and just willdepend on the facts and circumstances of the particular case” (Ward at para. 19). [61] As I will explain, context is everything in determining whether a personal representative can have public intereststanding to advance a Charter claim on a motion to strike because neither Hislop nor Giacomelli were a situation where the cause ofaction alleged that the violation of the Charter contributed to death.

The Hislop Decision [62] In Hislop, the Supreme Court of Canada upheld the decision to strike down, under s. 52(1) of the Constitution Act,1982, certain amendments made in 2000 to the Canada Pension Plan, R.S.C., 1985, c. C-8 (the CPP), because the laws infringed s.15(1) of the Charter.

Those provisions of the CPP, while allowing for survivor benefits for same-sex couples, also placed restrictionson the retroactivity of survivor benefits based on the date of the death of a survivor’s spouse. [63] The issue in Hislop relevant to this appeal was whether members of the class action who died before their Charterclaim was adjudicated should receive a constitutional exemption from s. 60(2) of the CPP. Section 60(2) was a provision of the CPPthat pre-dated the 2000 amendments designed to expand benefits to same-sex couples.

Section 60(2) limits the right of the estates of anysurvivor from obtaining survivors benefits under the CPP if the application is not made within 12 months after the death of the survivor. [64] Members of the class action argued that s. 60(2) of the CPP unfairly impacted survivors who died more than 12 monthsprior to the coming into force of the amendments to the CPP in 2000.

The argument was that the estates of that class of survivors had noability to apply for CPP survivor benefits because, prior to 2000, such benefits did not exist for same-sex partners and the amendments in2000 to the CPP placed restrictions as to eligibility until struck down by Macdonald J. on December 19, 2003 (Hislop et al. v. Canada(Attorney General), [2003] O.T.C. 1111 (Sup.

Ct.)). [65] The Supreme Court of Canada agreed with the Ontario Court of Appeal that s. 15(1) Charter rights are personal andterminate with the death of the affected individual and that estates are artificial entities incapable of having their human dignityinfringed. LeBel and Rothstein JJ. stated (at para. 73): In our opinion, the government’s submissions have merit. In the context in which the claim is made here, an estate is just a collection ofassets 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) Charterclaims. In this sense, it may be said that s. 15 rights die with the individual. [emphasis added] [66] I do not read such careful language as endorsement for the broad proposition that redress for a violation of a Charterright ends on death, regardless of the context.

The court could have easily made such a broad declaration, but chose instead to keep itsremarks tailored to the context of claims on behalf of persons who were already deceased at the time the change to the CPP occurred. [67] It is important to remember that the main issues in Hislop did not involve the standing of a personal representative toadvance a Charter claim on behalf of an estate.

The court noted that the issue of seeking redress for deceased individuals was of “lesspervasive significance” to the larger dispute before them regarding the constitutionality of the 2000 amendments to the CPP (Hislop atpara. 9). [68] Also worth noting is the fact that the main issues in Hislop turned on the seeking of declarations of invalidity of parts ofthe CPP under s. 52(1) of the Constitution Act, 1982. Section 52(1) of the Constitution Act, 1982 and s. 24(1) of the Charter serve“different remedial purposes” (Ferguson at para. 61).

Section 24(1) of the Charter creates a personal remedy for unconstitutionalgovernment action as opposed to unconstitutional laws, which are properly addressed by s. 52(1) of the Constitution Act, 1982 (Fergusonat paras. 59-61). It is only in the most unusual of cases where additional relief under s. 24(1) of the Charter is required after adeclaration of invalidity is made pursuant to s. 52(1) of the Constitution Act, 1982.

The framer’s intent for s. 24(1) of the Charter wasthat its primary purpose was to remedy unconstitutional acts of government actors (Ferguson at para. 63). [69] Care must be taken on a motion to strike a Charter claim involving s. 24(1) of the Charter because of the limited

immunity doctrine ( Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick , 2002 SCC 13 , [2002] 1 S.C.R. 405). That doctrine provides that, absent a clear wrong, bad faith or an abuse of power, no civil liability, including damages, arises for harm suffered as a result of the enactment or application of a law subsequently held to be unconstitutional ( Mackin at paras. 78-81 ).

The elevated fault requirement of the limited immunity doctrine precludes a remedy pursuant to s. 24(1) of the Charter “absent threshold misconduct” ( Ward at para. 39 ; and Henry at para. 42 ). [ 70 ] In Hislop , Parliament’s passing of what later would be found to be unconstitutional amendments to the CPP , could not have given rise to a remedy, such as damages, because of the limited immunity doctrine. The situation is different here where no question of immunity arises, if the facts alleged in the claim are proven.

The plaintiff seeks various remedies under s. 24(1) of the Charter because of the alleged unconstitutional actions that contributed to the death of Mr. Sinclair. [ 71 ] Finally, the court took care in Hislop to recognize that the alleged breach of s. 15(1) of the Charter occurred after the affected individual claimants were already deceased. There was no living “individual” at the time when the breach of the Charter allegedly arose and the breach of the Charter right played no

part in death, unlike what is alleged in the amended claim here. In my view, the court’s language is consistent with the wording of s. 15(1) of the Charter which limits equality rights to individuals only: Equality before and under law and equal protection and benefit of law 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [emphasis added] The Giacomelli Decision [ 72 ] Unlike the motion judge, I do not read the comments in Giacomelli as determinatively deciding that redress for a violation of a Charter right ends on death, regardless of the context. [ 73 ] Mr.

Giacomelli was a Canadian citizen of Italian origin who, together with other Italian-Canadians, was interned by the Federal Government during World War II. In 1990, the Prime Minister admitted that the arrest and imprisonment of Italian-Canadians during the war, such as Mr. Giacomelli, was “wrongful, arbitrary and discriminatory” ( Giacomelli at para. 5 ). However, no compensation was paid to the internees, unlike the situation with interned Japanese-Canadians. Mr.

Giacomelli commenced an action which alleged, in part, that the Federal Government’s refusal to pay compensation violated ss. 7 and 15 of the Charter . The Crown moved unsuccessfully to strike his Charter claim for want of a reasonable cause of action based on Crown immunity. Mr. Giacomelli then passed away before the trial of his action commenced. [ 74 ] A motion judge refused to allow Mr.

Giacomelli’s executors to continue the Charter claim aspect of the action because it did not fall under the powers of a personal representative to sue, as set out in Ontario’s survival legislation ( s. 38(1) of the Trustee Act ). The Ontario Court of Appeal agreed that, based on Hislop , “an estate cannot continue a claim based on s. 15(1) of the Charter ” ( Giacomelli at para. 16 ).

Based in part on counsel’s concession, the Court of Appeal extended that principle when it stated the same “reasoning applies equally to … s. 7 [ Charter ] claims” ( Giacomelli at para. 20 ). [ 75 ] The Ontario Court of Appeal noted that in Hislop the court recognized that there were common law exceptions that would allow for a claim to survive the death of the affected individual if the death occurred after the conclusion of argument at trial or post-judgment during the appeal process. Gillese J.A. commented (at para. 18): Neither exception applies to the present case.

Thus, although the appellant commenced his Charter claims during his lifetime, as those claims had neither been adjudicated nor argued at the time of his death, as a matter of law, they do not survive his death. [ 76 ] Again, as was the case in Hislop , the Ontario Court of Appeal in Giacomelli used language carefully tailored to the dispute before it and went no further. The court was not asked by the parties, and did not undertake, a broad discussion of the question of the standing of a personal representative to bring a Charter claim in circumstances analogous to the ones here.

The Hislop and Giacomelli Decisions are Distinguishable [ 77 ] Like Hislop , Giacomelli is distinguishable from this case because the context of the Charter claim here is quite different. Mr. Sinclair did not die before the alleged breach of his Charter rights occurred ( Hislop ). Also, the alleged Charter breaches pleaded in the amended claim contributed to Mr. Sinclair’s death, unlike the situation in Giacomelli where there was no factual nexus between’s Mr. Giacomelli’s death and the alleged violation of his Charter rights. [ 78 ] In

summary, I fail to see how the circumscribed language in Hislop and Giacomelli , taking into account the factual context of those cases, irrefutably bars the plaintiff’s standing to commence a Charter claim in relation to Mr. Sinclair’s death. I make such comment mindful that the Ward decision, decided subsequent to Hislop and Giacomelli , sets out the unique public nature of a

remedy pursuant to s. 24(1) of the Charter in a civil action.

The Ward Decision [79] In Ward, the Supreme Court of Canada discussed the four-part analysis for when a remedy, including that ofconstitutional damages, for a breach of Charter rights may be awarded pursuant to s. 24(1) of the Charter, which provides: Enforcement of guaranteed rights and freedoms 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [80] Remedies awarded pursuant to s. 24(1) of the Charter have a “unique” public quality (Ward at para. 31).

They may beawarded for the objectives of compensation for personal loss, vindication of the Charter right infringed and deterrence of state actorsfrom committing like breaches going forward (see para. 25). The objectives of vindication and deterrence address societal purposes (seeparas. 28-29). [81] While Ward settled that constitutional and tort remedies are separate and they operate concurrently, without onenecessarily prevailing over the other, the court readily recognized in its reasons that the appropriateness of when to grant a constitutionalremedy depends on the context of a given case.

When it is “appropriate and just” to look to a constitutional remedy to achieve theobjectives of compensation, vindication or deterrence is a matter that the court stated “should develop incrementally” (at para. 21). Thesame cautious reasoning applies for what “practical wisdom” should be borrowed from the private law to shape liability for breaches ofthe Charter and constitutional remedies (at para. 43). [82] While it is not uncommon to transplant ideas from private law to public or constitutional law, such borrowings shouldbe done only where the private law principle is relevant to a purposive

interpretation of the constitutional principle (Air Canada v. BritishColumbia, (SCC), [1989] 1 S.C.R. 1161 at 1197-98; Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC1 at para. 36, [2007] 1 S.C.R. 3; and Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 51, [2003] 3 S.C.R.3). If not, it is inappropriate to borrow from the private law to expound the constitutional principle. [83] I am not persuaded by the WRHA’s argument that the common law rule of actio personalis moritur cum persona is anappropriate principle from the private law to justify an

interpretation of the Charter that redress for violations of the Charter always endon death. The differing approaches to civil liability in tort and contract brought about by that common law principle were recognized tobe “anomalous” and the product of history (S.S. Amerika at p. 50). Before it was abolished in England, this common law principle wasreviled. It was viewed as illogical, based on an erroneous historical

interpretation of English law and ultimately was considered to bemanifestly unjust (see W.S. Holdsworth, “The Origin of the Rule in Baker v. Bolton” (1916), 32 L.Q. Rev. 431; Percy H. Winfield,“Death as Affecting Liability in Tort” (1929), 29 Columbia L. Rev. 239; and Rose v.

Ford, [1937] A.C. 826 at 841-42, 855-56 (H.L.)). [84] I see no imaginable reason to borrow such a discredited and outdated principle of the common law to the modern agewhere key values underlying the Charter include the affirmation of individual human dignity and respect for the value of human life(Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 at para. 81, [2007] 2 S.C.R.391; and Carter v.

Canada (Attorney General), 2015 SCC 5 at paras. 63, 81). [85] The principles discussed in Ward, particularly the societal interests that arise when an individual’s Charter rights arebreached, require a motion court to take careful pause before striking out a claim because this law is complex and developing. Thedecisions of Dudley v. British Columbia (Minister of Public Safety and Solicitor General), 2013 BCSC 1005, 49 B.C.L.R. (5th) 382(QL); and Ashley v.

Chief Constable of Sussex Police (Sherwood intervening), [2008] UKHL 25, [2008] 1 A.C. 962, provide usefulinsights, as both cases involved an attempt to strike out claims involving an allegation of unlawful state action contributing to a death. [86] In Dudley, the court refused to strike out a claim for constitutional damages and/or a declaration for an allegation thatthe police violated a deceased victim’s s. 7 Charter rights by failing to reasonably respond to a gunshot complaint.

Unlike Hislop andGiacomelli, the pleadings in Dudley alleged a factual nexus between the alleged Charter breach and the death of the affected individual. The court accepted that Ward allows for the possibility of considering public law interests in wrongful death claims where there is analleged unconstitutional act by a state actor.

In refusing to strike out the claim, Holmes J. commented that the claim was “precisely thetype of novel but arguable claim that should survive a motion to strike on a generous approach” (Dudley at para. 40). [87] Ashley is another useful example of a situation where a novel claim should not be struck out because the context, theuse of deadly force by police, raises questions of public interest that could justify a remedy with a vindicatory or deterrent purpose. [88] In Ashley, the defendant Chief of Police, admitted that the police were negligent when they shot and killed JamesAshley (Mr.

Ashley) during the execution of a search warrant. Responsibility for any damages arising from the police shooting was alsoadmitted. Despite these admissions, Mr. Ashley’s personal representative wished to pursue a claim of battery against the police forpurely a vindicatory purpose. [89] A majority of the House of Lords upheld the decision to refuse to strike out the battery claim. Lord Scott commented(at para. 22): .… But the purposes for which damages could have been awarded to the deceased Mr Ashley himself, if he had not died as a result of

the shooting, are not confined to a compensatory purpose but include also, in my opinion, a vindicatory purpose. In Chester v Afshar[2005] 1 AC 134, para 87 Lord Hope of Craighead remarked that “The function of the law is to enable rights to be vindicated and toprovide remedies when duties have been breached” and that unless an infringed right were met with an adequate remedy, the duty wouldbecome “a hollow one, stripped of all practical force and devoid of all content”. So, too, would the right.

How is the deceased MrAshley’s right not to be subjected to a violent and deadly attack to be vindicated if the claim for assault and battery, a claim that the chiefconstable has steadfastly and consistently disputed, is not allowed to proceed? Although the principal aim of an award of compensatorydamages is to compensate the claimant for loss suffered, there is no reason in principle why an award of compensatory damages shouldnot also fulfil a vindicatory purpose.

But it is difficult to see how compensatory damages can could ever fulfil a vindicatory purpose in acase of alleged assault where liability for the assault were denied and a trial of that issue never took place. …. [emphasis added] [90] While the result in Ashley was purely the function of private law and the question of the personal representative’sstanding was not controversial because of the 1934 Act, the reasoning of the majority of the House of Lords parallels the approach takenin Ward with s. 24(1) of the Charter.

In reaching its decision, the majority of the House of Lords relied on authorities such as Dunlea v.Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136 (NZLII); and Attorney General of Trinidad and Tobago v.

Ramanoop,[2005] UKPC 15, [2006] 1 A.C. 328, which were also relied on in Ward (see paras. 22, 27-30) and were said by the Supreme Court ofCanada to reflect how public law interests may justify a remedy in an action over breaches of an individual’s Charter rights. [91] While I agree with the comments in Ward that the law regarding constitutional remedies must be cautiously developed,the Charter must also be interpreted in such a way as to allow courts to craft responsive and effective remedies in order to protect thepurpose which a particular Charter right serves (Doucet-Boudreau at paras. 24-25; and Henry at para. 64).

Failing that, Charter rightswould exist on paper only. [92] The plaintiff has raised a substantial constitutional issue in the Charter claim (Downtown Eastside Sex Workers at para.42). I reject the idea that it is a foregone conclusion that the Charter should be read to not allow for any litigation where the breach ofthe Charter allegedly contributed to a death. I also do not agree that societal concerns arising from a breach of the Charter in relation toone individual should never be corrected when the affected party dies.

It is unnecessary to illustrate the perverse and deleterious effectssuch a bright line rule would create by real life examples, as unlawful deadly acts of state actors are well known in our history.

All thatneed be said, is that in a society based on the rule of law, the principle of legality requires that “there must be a practical and effective[way] to challenge the legality of state action” (Downtown Eastside Sex Workers at para. 31; and see Tom Bingham, The Rule of Law(London, England: Penguin Books Ltd., 2010) at 8). [93] In my view, limits to the application of the Charter must come from the language of the Charter itself, taking intoaccount a given context as was done in Hislop or Giacomelli, as opposed to a universal rule based on the borrowing of the disgracedprivate law principle of actio personalis moritur cum persona. [94] As noted by the majority of the House of Lords in Ashley, necessity requires a substitute plaintiff in cases such as this,as the voice of the affected individual has been lost by death, supposedly at the hands of an alleged state actor.

The fiduciary dutiesowed by a personal representative as a trustee make them well-suited to decide whether to advance a Charter claim in circumstancessuch as this case. [95] In light of the comments in Ward about the societal interests underpinning remedies for vindication of the infringementof Charter rights and deterrence of future breaches, I am satisfied that, although the Charter claim here is novel and complex, it shouldnot be struck out because of standing (Imperial Tobacco Canada Ltd. at para. 21; and Driskell at para. 13).

In coming to my decision, Irespectfully disagree with the reasoning and opposite conclusion reached in Wilson Estate v. Canada (1996), (BCSC), 25 B.C.L.R. (3d) 181 at paras. 20-26 (S.C.). Conclusion [96] As the motion judge erred in law in his consideration of the question of standing, no deference is owed to his decision.

It falls to this court to consider the question of public interest standing in light of the test set out in Downtown Eastside Sex Workers (seepara. 37). [97] When all three factors relevant to determination of public interest standing are weighed cumulatively, mindful of theirpurposes, I am of the view that the plaintiff should be granted public interest standing to advance the Charter claim relating to Mr.Sinclair’s death at the HSC. Granting standing will clarify the serious issue of whether redress for a Charter violation ends on deathwhen the alleged breach contributed to the death.

As the administrator of Mr. Sinclair’s estate is already pursuing a negligence claimover the same factual matrix as the Charter claim, the plaintiff has a real stake in the proceedings. There are no reasonable concerns thatshe will not adequately argue the constitutional issues raised by the Charter claim if granted standing to do so.

Finally, a Charter claimproceeding together with the negligence claim is a reasonable and effective way to bring the serious constitutional issue the plaintiff’samended claim raises before the courts because the factual matrix is common to both claims. [98] While it is necessary to set aside the motion judge’s order, fairness demands that the WRHA’s motion to strike bereferred back to the Court of Queen’s Bench to allow the WRHA to seek an adjudication under Queen’s Bench Rule 25.11(

d) as towhether the facts alleged in the amended claim support a reasonable cause of action under the Charter for the remedies sought, as thatquestion remains unanswered. Disposition

[ 99 ] I would allow the appeal with costs, set aside the motion judge’s order, and direct that a different judge of the Court of Queen’s Bench hear afresh the question of whether the facts alleged in the amended claim support a reasonable cause of action under the Charter for the remedies sought. J.A. MONNIN J.A. [ 100 ] I concur entirely with my colleague Mainella J.A.’s reasons on the first issue of this appeal.

I also adopt his comments with respect to the role of this court on applications to strike pleadings under Queen’s Bench Rule 25, including that novelty should not serve as a bar. [ 101 ] As my colleague Mainella J.A. has indicated, there is a second issue on this appeal involving a claim that the disclosure defendants negligently disclosed confidential patient information concerning the deceased. [ 102 ] More particularly, in the re-amended statement of claim, the plaintiff seeks general and aggravated damages in the amount of $10,000 “for violation of Brian Sinclair’s privacy and patient confidentiality and for negligent use of Brian Sinclair’s personal medical information.” [ 103 ] In its recital of facts in the same document, the plaintiff alleges that, in order to deflect blame from itself and its employees, certain officials of the Winnipeg Regional Health Authority (the WRHA) stated publicly that Mr.

Sinclair had never approached the triage desk, information that could only have been gleaned from the hospital’s records. That information proved to be incorrect given the closed-circuit television (CCTV) footage . As well, it is alleged that the WRHA communicated confidential patient information concerning Mr. Sinclair to the Government of Manitoba who, in turn, repeated the information to the media.

For the purposes of this appeal on a motion to strike for failure to disclose a reasonable cause of action, these facts must be taken as true. [ 104 ] Arising from those facts, the plaintiff alleges that the WRHA had a duty to preserve Mr. Sinclair’s privacy interests and his personal medical information, to guard against the misuse of this information and to protect his family against injury from that misuse. [ 105 ] The plaintiff alleged that, by publicizing an account of the medical services provided to Mr. Sinclair, the WRHA violated Mr. Sinclair’s privacy rights under The Privacy Act , C.C.S.M., c. P125.

Additionally, the plaintiff says that since it owed a duty of care to protect Mr. Sinclair’s family against the misuse of his personal medical information in keeping with the provisions of the statutory requirements under The Regional Health Authorities Act , C.C.S.M., c. R34, and The Personal Health Information Act , C.C.S.M., c. P33.5, the WRHA and its employees breached their duty of care to the family by negligently misusing Mr. Sinclair’s personal medical information in pursuit of their own interests, particulars of which were:

a) they failed to preserve the integrity and confidentiality of Mr. Sinclair’s personal medical information, including information about his actions and indicative of his state of mind upon attending the Health Science Centre Emergency Room, and information about the provision of medical services;

b) they recklessly disseminated to the media personal medical information about Mr. Sinclair that they knew to be false; and

c) they willfully or recklessly disseminated a public message, as part of their planned public relation strategy in the aftermath of Mr. Sinclair’s death, that suggested that he was implicit in or wholly to blame for the tragic circumstances leading to his death. [ 106 ] The plaintiff therefore alleges that, as a result of the WRHA’s negligence and violation of Mr. Sinclair’s privacy rights, Mr. Sinclair’s family members, which would include the plaintiff, have suffered distress, public embarrassment and mental anguish.

Decisions of the Master and Motion Judge [ 107 ] In his decision, the Master noted that the actions complained of with respect to the breach of privacy claim were acts occurring after the death of Mr. Sinclair. As a result, he concluded that the violation was not against him as a natural person, but against his estate. Nor was it committed against his family members as it was not their privacy that was alleged to have been violated.

As a result, referencing the Hislop decision discussed in Mainella J.A.’ s reasons, he held that the estate had no privacy interest that could be violated for the purposes of a tort action under The Privacy Act . He therefore struck the allegations of breach of privacy in their entirety. No mention was made of the claim for negligent disclosure in the Master’s decision. [ 108 ] On appeal, the motion judge adopted the Master’s conclusions and reasons. He commented on the fact that the plaintiff argued that the Master overlooked the negligent disclosure claim in arriving at his decision.

He concluded, after a reading of the Master’s entire decision, that he was satisfied that the Master intended to strike out the negligent disclosure claim as well. In any event, he was also satisfied that the WRHA and its representatives owed no duty of care to the plaintiff or members of Mr. Sinclair’s family to protect Mr. Sinclair’s privacy. In his words, “[a]ny duty of care which they owed would have been owed only to Mr. Sinclair personally” (at para. 6). He dismissed the appeal. Plaintiff’s Position on Appeal

[109] On appeal to this court, the plaintiff did not seek to set aside the decision to strike out the claim for breach of privacyunder The Privacy Act.

Her position was that there were two distinct causes of action raised; namely, breach of privacy and negligentdisclosure, the latter which she sought to advance. [110] The plaintiff argues that her statement of claim sets out that there was a duty of care owed to the plaintiff in her personalcapacity, that the standard of care was breached and that damages flowed to her personally as well as to other family members from thedisclosure of the confidential information.

Disclosure Defendants’ Position [111] The disclosure defendants’ position is that the motion judge did deal with the breach of privacy arguments which, intheir submission, are one and the same as the negligent disclosure. In their factum, the disclosure defendants argue: Whether one calls it breach of privacy or negligent disclosure the plaintiff’s argument was, and is, that these alleged disclosuressomehow constitute a tort actionable by [the plaintiff].

They do not. [112] The disclosure defendants’ position is that the plaintiff, in her personal capacity, has no legal right to recover damagesfor a breach of the duty owed to Mr. Sinclair. Issues [113] On the facts set out in the re-amended statement of claim, did the motion judge err in finding that there was no duty ofcare owed to the plaintiff by the disclosure defendants and that the claim for negligent disclosure should be dismissed? Analysis [114] While not conceded by the disclosure defendants, in my view, the acts alleged in the statement of claim, if proven, wouldhave given Mr.

Sinclair the ability to pursue various causes of action under the existing and expanding law relating to privacy interests. As well, unauthorized use and disclosure of personal health information records would have afforded the deceased sufficient grounds tocommence an action under the provisions of The Privacy Act.

Notably, The Privacy Act stipulates in s. 8(1) that any cause of actioncreated by the Act is not in derogation of existing causes of action available to a claimant. [115] The question here, however, is whether the facts as presented support any other cause of action other than a claim underThe Privacy Act, which is not being pursued, and whether such a cause of action enures to the benefit of parties other than the deceased. [116] I have some concerns with the comments of the motion judge that a duty of care to maintain the confidentiality of recordsand not to use them without consent is a duty owed only to the party whose records are being disclosed. [117] Current jurisprudence has recognized the expansion of tort law in dealing with confidential information.

Whether thatexpansion also encompasses claims by third parties who may also be harmed by an unauthorized disclosure of information is somethingwhich remains open.

a) Breach of Confidence [118] Tort law has recognized that a breach of confidence in certain circumstances may create a cause of action (see LacMinerals Ltd. v. International Corona Resources Ltd., (SCC), [1989] 2 S.C.R. 574; and Cadbury Schweppes Inc. v. FBIFoods Ltd., (SCC), [1999] 1 S.C.R. 142). Courts have recognized that the unauthorized use of confidential informationto the detriment of the party communicating it, and from which damages ensue, may lead to a cause of action. The elements required tomake out the tort of breach of confidence are:

a) that the information must have the necessary quality of confidence about it;

b) that the information must have been imparted in circumstances importing an obligation of confidence; and

c) that there must be unauthorized use of that information to the detriment of the party communicating it (see H.R.G. v. M.S.L., 2007BCSC 930, 75 B.C.L.R. (4th) 141; Canada (Attorney General) v. Rundle (c.o.b. NEC Plus Ultra), 2013 ONSC 2747, 16 B.L.R. (5th) 269(QL); and Sabre Inc. et al. v. International Air Transport Association et al., 2011 ONCA 747 at para. 14, 286 O.A.C. 246). [119] The facts as set out in the statement of claim disclose that the disclosure defendants used admittedly confidentialinformation (personal health records) in an unauthorized fashion. The disclosure detrimentally affected Mr.

Sinclair as it portrayed himas being the author of his own misfortunes. [120] Claims on the basis of the tort of a breach of an obligation of confidence have been used more extensively in the Englishcourts (see Coco v. A.N. Clark (Engineers) Ltd., [1969] R.P.C. 41). It has also been expanded not only to situations where theinformation had not been confided to a confidant, but where a person knew or ought to have known that there was a reasonableexpectation of privacy (see Attorney-General v. Guardian Newspapers Ltd. (No. 2), [1990] 1 A.C. 109 at 281 (H.L); Campbell v.

MGNLtd, [2004] UKHL 22, [2004] 2 A.C. 457; and Douglas v. Hello! Ltd (No 3), [2007] UKHL 21, [2008] 1 A.C. 1). [121] As well, it is not necessarily limited to a claim by the individual whose confidence has been directly breached. In R. v.

Broadcasting Complaints Commission, ex parte Granada Television Limited , [1995] EMLR 163 , the parents of two children who had suffered tragic deaths complained concerning the broadcast of television programs featuring photographs and details of the children’s death. The cause of action was that the disclosure violated the parents’ right to privacy under relevant legislation.

The English Court of Appeal found that privacy was not confined to matters concerning the individual, but also extended to family, in that case the parents of the deceased children. [ 122 ] Another area of developing jurisprudence in the area of tort law relating to privacy interests is that set out by the Ontario Court of Appeal in Jones v. Tsige , 2012 ONCA 32 , 287 O.A.C. 56 , where it recognized the availability of an action for the invasion of personal privacy, intrusion upon seclusion.

The Ontario Court of Appeal, relying upon the Restatement (Second) of the Law, Torts , § 652B (2010), adopted as the elements of an action for intrusion upon seclusion the following (at para. 19): ….

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person. [ 123 ] This formulation was based on Professor Prosser’s work which stated there were actually four torts “tied together by a common theme and name but comprising different elements and protecting different interests”; namely:

a) intrusion upon an individual’s seclusion or solitude, or into his private affairs;

b) public disclosure of embarrassing private facts about the individual;

c) publicity which places the individual in a false light in the public eye; and

d) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. See Jones at para. 18 ; and William L. Prosser, “Privacy” (1960) 48 Cal. L. Rev. 383 at 389. [ 124 ] The Ontario Court of Appeal accepted Prof. Prosser’s recital of the potential causes of action, although it declined to expand on the second, third and fourth torts as it was not necessary for its decision. [ 125 ] In a recent decision, Hopkins v.

Kay , 2015 ONCA 112 , 380 D.L.R. (4th) 506 (QL) , the Ontario Court of Appeal had the opportunity to elaborate on its decision in Jones and to confirm that the cause of action for intrusion upon seclusion could be applied to a situation involving the unauthorized disclosure of patient hospital records notwithstanding the existence of the Personal Health Information and Protection Act, 2004 , S.O. 2004, c. 3, Sched. A , of Ontario similar to The Personal Health Information Act of Manitoba; see also Hynes et al. v.

Western Regional Integrated Health Authority , 2014 NLTD(G) 137 , 357 Nfld. & P.E.I.R. 138 . [ 126 ] Again, it is clear from the emerging jurisprudence that, had Mr.

Sinclair survived, he may, on the facts set out in the statement of claim, have advanced a claim for breach of confidence or intrusion upon seclusion or perhaps for publicity which placed him in a false light in the public eye. [ 127 ] Whether family members, who claim to have suffered as a result of a breach of a privacy interest of another member, are in sufficient proximity to the victim in a tort context and are therefore able to advance a claim in their own right, remains an open question.

It would not be appropriate to dismiss at this early stage the possibility of a court recognizing that damages suffered by immediate or close family members as a result of such a breach are compensable. [ 128 ] For these reasons, I believe the motion judge erred when he dismissed the plaintiff’ s claim for negligent disclosure on the grounds that there was no duty of care owed to the plaintiff in her personal capacity.

In my view, the matter should be referred back to the motion court, as will be the case with respect to the Charter issue referred to by my colleague, with leave to the plaintiff to amend the pleadings to reflect a cause of action based upon a breach of confidence or intrusion upon seclusion or publicity, using the facts as set out in the statement of claim. The disclosure defendants would be entitled to challenge those amendments, whether upon grounds of prejudice or limitations if they choose to do so. [ 129 ] I am cognizant of the Supreme Court of Canada’s comments in R. v.

Mian , 2014 SCC 54 , [2014] 2 S.C.R. 689 , with respect to the limitations upon an appellate court raising new issues on its own motion. In my view, this is not a new issue, but rather a reflection of what was disclosed by the pleadings and the arguments advanced by the parties before the court, although without them having an opportunity to argue the specifics of the applicability of these additional causes of actions. That will be remedied by the motion court hearing their arguments, if any. J.A. CAMERON J.A. (concurring): [ 130 ] I concur with the reasons and dispositions proposed by my colleagues.

J.A. CORRIGENDUM May 27, 2015 TO WHOM IT MAY CONCERN: Re: Grant v. Winnipeg Regional Health Authority et al. 2015 MBCA 44 Docket No. AI13-30-08070 Released: May 4, 2015 The attached decision replaces the previous decision which was released May 4, 2015. In the first sentence of para. 55, the word used should be justiciable and not justifiable.

The sentence now reads: The criteria of public interest standing require a purposive and flexible evaluation of the interrelated factors of: whether there is a serious justiciable issue, whether the plaintiff has a real stake or genuine interest in it, and, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts ( Downtown Eastside Sex Workers at para. 37; and Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14 at para. 43 , [2013] 1 S.C.R. 623 ). ….