THE QUEEN'S BENCH Winnipeg Centre BETWEEN:

File No. CI 10-01-68315

ESTHER JOYCE GRANT (on her own behalf and in her capacity as administrator of the Estate of BRIAN LLOYD SINCLAIR) Plaintiff - 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 Defendants

Re: Government of Manitoba motion to strike #2 Hearing date: Monday, February 13, 2012, 10:00 a.m.

MOTION BRIEF OF THE PLAINTIFF

ZBOGAR ADVOCATE 51 Crossovers St. Toronto Ontario Canada M4E 3X2 Vilko Zbogar T. 416-855-6710 F. 416-855-6709 vzbogar@zbogaradvocate.ca

MURRAY N. TRACHTENBERG 212-428 Portage Avenue Winnipeg Manitoba Canada R3C 0E2 Murray N. Trachtenberg T: (204) 940-9602 F: (204) 944-8878 mntlaw@shaw.ca

Counsel for the Plaintiff

THE QUEEN'S BENCH Winnipeg Centre BETWEEN:

File No. CI 10-01-68315

ESTHER JOYCE GRANT (on her own behalf and in her capacity as administrator of the Estate of BRIAN LLOYD SINCLAIR) - and -

Plaintiff

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 Defendants

Re: Government of Manitoba motion to strike #2 Hearing date: Monday, February 13, 2012, 10:00 a.m.

MOTION BRIEF OF THE PLAINTIFF

TABLE OF CONTENTS
DOCUMENTS TO BE RELIED UPON ............................................................................ 2 AUTHORITIES TO BE REFERRED TO .......................................................................... 2 INTRODUCTION ............................................................................................................. 4 GENERAL PRINCIPLES ................................................................................................. 4 ISSUES ........................................................................................................................... 5 POINTS TO BE ARGUED ............................................................................................... 6 Issue 1: The Plaintiff has standing to claim public nuisance ........................................ 6

2 Issue 2: It is not plain and obvious that the pleadings fail to disclose a reasonable cause of action in public nuisance ............................................................ 8 A. The existence of a public nuisance .................................................................... 9 B. Particular or special damages.......................................................................... 11 C. Adequacy of pleadings..................................................................................... 14 D. Government of Manitobas liability ................................................................... 15 SUMMARY .................................................................................................................... 18 RELIEF REQUESTED .................................................................................................. 18

DOCUMENTS TO BE RELIED UPON

Re-Amended Statement of Claim, September 15, 2010 (amended Oct 14, 2011)

AUTHORITIES TO BE REFERRED TO
Authorities referred to herein are contained in:

Plaintiff BOA1: BOOK OF AUTHORITIES OF THE PLAINTIFF Re: WRHA Defendants motion to strike Plaintiff BOA2: SUPPLEMENTARY BOOK OF AUTHORITIES OF THE PLAINTIFF Re: Government of Manitoba motion to strike #2 Manitoba BOA1: BOOK OF AUTHORITIES OF THE DEFENDANT, THE
GOVERNMENT OF MANITOBA (containing 18 tabs)

Manitoba BOA2: BOOK OF AUTHORITIES OF THE DEFENDANT, THE WRHA Brief: MOTION BRIEF OF THE DEFENDANTS WINNIPEG REGIONAL HEALTH AUTHORITY, et al.

GOVERNMENT OF MANITOBA, Hearing Date Before Master: February 13, 2012

Case Law and articles (in order cited)

Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959 ............................................ WRHA Brief, TAB 2 Robertson v. Manitoba Keewatinowi Okimakanak Inc. [2011] M.J. No. 24 .............................................................................................................. Plaintiff BOA1, TAB 1 Driskell v. Dangerfield [2008] M.J. No. 165 ................................................ Plaintiff BOA1, TAB 2 Lukcs v. Doering et al. 2011 MBQB 203 ................................................. Plaintiff BOA2, TAB 27

3
Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607 .................... Plaintiff BOA2, TAB 28 Bains v. Jasser [1983] B.C.J. No. 1020 ................................................... Plaintiff BOA2, TAB 29 Gagnier v. Canadian Forest Products Ltd. [1990] B.C.J. No. 2359 .......... Plaintiff BOA2, TAB 30 Ryan v. Victoria (City), [1999] 1 S.C.R. 201 ........................................... Manitoba BOA2, TAB 2 Stein v. Gonzales [1984] B.C.J. No. 3038 .............................................. Manitoba BOA2, TAB 4 Sutherland v. Canada (Attorney General) 2002 BCCA 416 .................... Manitoba BOA2, TAB 5 Heyes v. City of Vancouver, 2009 BCSC 651 .......................................... Manitoba BOA2, TAB 6 Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City), 2011 BCCA 77; leave to appeal dismissed, [2011] S.C.C.A. No. 175 ................ Plaintiff BOA2, TAB 31 Linden, A.M. and B. Feldthusen, Halsburys Laws of Canada - Torts. Chapter III: Nuisance, Section 2: Public Nuisance .................................. Plaintiff BOA2, TAB 32 G.H.L. Fridman, The Law of Torts in Canada, 2d ed. (2002) .................. Manitoba BOA2, TAB 15 Klar, Linden, Cherniak, Kryworuk, Remedies in Tort, Vol. 3, Chapter 17........................................................................................................... Manitoba BOA2, TAB 16 Operation Dismantle v. Canada, [1985) 1 S.C.R. 441 ............................ Manitoba BOA2, TAB 8 Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) [1990] O.J. No. 589 ................................................................................ Manitoba BOA2, TAB 9 Josephson v. Merritt (City) [2003] B.C.J. No. 2282 .................................. Plaintiff BOA2, TAB 33

Legislation
Court of Queens Bench Rules, Man Reg 553/88, Rule 25.11 ........................ WRHA Brief, TAB 1 Fatal Accidents Act, C.C.S.M. c.F50, ............................................................. WRHA Brief, TAB 5 Trustee Act, C.C.S.M. c.T160, s.53(1) .......................................................... WRHA Brief, TAB 6 Canada Health Act, R.S.C., 1985, c. C-6, s. 7.......................................... Manitoba BOA1, TAB 2 The Constitution Act, 1867, s. 92(7) ......................................................... Plaintiff BOA2, TAB 34

INTRODUCTION
1. This brief responds to a second Notice of Motion to strike filed by the Government of Manitoba. The Government submits that the Plaintiff has no standing to make a claim in public nuisance and that there is no reasonable cause of action. 2. This is clearly not a situation where it is plain and obvious and beyond doubt that there is no cause of action. Rather, the action raises important and complex points of fact and law and it is critical that the action be allowed to proceed.

GENERAL PRINCIPLES
3. The test for determining a motion to strike is articulated in Hunt v. Carey Canada Inc. as follows:
[I]f there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect... should the relevant portions of a plaintiff's statement of claim be struck out...
Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at par. 33 [WRHA Book of Authorities (WRHA Brief) Tab 2] Robertson v. Manitoba Keewatinowi Okimakanak Inc. [2011] M.J. No. 24 at par. 18 [Plaintiffs original Book of Authorities (Plaintiff BOA1), Tab 1]

4.

A claim should be permitted to proceed to trial unless it is fully settled, plain and obvious or beyond doubt that there is no cause of action.
Robertson v. Manitoba Keewatinowi Okimakanak Inc. [2011] M.J. No. 24 at par. 17 [Plaintiff BOA1, Tab 1] Driskell v. Dangerfield [2008] M.J. No. 165 at par. 11-13 [Plaintiff BOA1, Tab 2] Gagnier v. Canadian Forest Products Ltd. (1990), 51 B.C.L.R. (2d) 218, at pg. 3 [Plaintiffs Supplementary Book of Authorities (Plaintiff BOA2), Tab 30]

5 5. Cases that raise an arguable, difficult or important point of law should be allowed to proceed:
The fact that a pleading reveals "an arguable, difficult or important point of law" cannot justify striking out part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society.
Hunt v. Carey Canada Inc., supra, at par. 52 [WRHA Brief Tab 2] Gagnier v. Canadian Forest Products Ltd., supra, at pg. 3 [Plaintiff BOA2, Tab 30]

6.

In a motion to strike out a pleading, the court must accept the facts alleged in the statement of claim as proven unless they are patently ridiculous or incapable of proof, and the statement of claim is to be read generously to accommodate drafting deficiencies.
Robertson v. Manitoba Keewatinowi Okimakanak, supra, at par. 18 [Plaintiff BOA1, Tab 1] Driskell v. Dangerfield, supra, at par. 13 [Plaintiff BOA1, Tab 2] Gagnier v. Canadian Forest Products Ltd., supra, at pg. 3 [Plaintiff BOA2, Tab 30]

ISSUES
7. The issues to be determined in this motion are: a. whether the Plaintiff has standing to make a claim in public nuisance in relation to the events causing Brian Sinclairs suffering and death in a Manitoba hospital emergency room in September 2008; and b. whether the Re-Amended Statement of Claim discloses a reasonable cause of action against the Government of Manitoba in public nuisance. 8. A substantial portion of the Government of Manitobas Motion Brief appears to protest the manner in which the Plaintiff amended the wording of the claim. The

6 nature of the amendments is not the issue in this motion, nor is any such issue properly raised in a motion to strike, nor is any purpose served by going back and analyzing a version of the claim that has no currency. The issue is whether the Re-Amended Statement of Claim itself discloses a reasonable cause of action.

POINTS TO BE ARGUED
Issue 1: The Plaintiff has standing to claim public nuisance 9. The Government Manitobas Notice of Motion asserts that the plaintiff has no standing to make a claim in public nuisance. However, this point is not addressed in the Government of Manitobas Motion Brief, except to the extent that it deals with the special damage element of public nuisance. In any event, it is clear that if there is a reasonable cause of action, the Plaintiff has standing to pursue it. 10. A party to an action may have either private interest standing or public interest standing. The Manitoba Court of Queens Bench in Lukcs v. Doering summarized these concepts:
Standing, which is the ability of a party to invoke the jurisdiction of the court, can be established by showing either private interest standing or public interest standing. The difference is the difference between standing as a matter of right arising from a direct relationship between the person and the state, and standing granted by a court in the exercise of its discretion where a direct relationship does not exist.
Lukcs v. Doering et al. 2011 MBQB 203 at par. 16 [Plaintiff BOA2, Tab 27], relying on Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General), 2010 BCCA 439

11.

The test for private interest standing is either a situation where interference with a public right also interferes with the private right of a private citizen, or where no

7 private right of a citizen is interfered with, but in respect of his public right a private citizen suffers special damage peculiar to himself from the interference with a public right. This test is derived from the Supreme Court of Canadas decision in Finlay v. Canada.
Lukcs, supra, at par. 17 [Plaintiff BOA2, Tab 27] Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607 at par. 18 [Plaintiff BOA2, Tab 28]

12.

In this action, the Plaintiff seeks damages as a result of the defendants tortious and constitutional wrongdoing, in addition to remedies under s.24 of the Charter. Although the action raises numerous public interest issues, the damages suffered and the remedies claimed are private in nature.
Re-Amended Statement of Claim, par. 1

13.

As Brian Sinclair is deceased, his estate is vested with the right to maintain an action in his stead for claims that he may have had before his death. The Trustee Act, section 53(1), provides:
All actions and causes of action in tort, whether to person or property, other than for defamation, malicious prosecution, false imprisonment, or false arrest, in or against any person dying continue in or against his personal representative as if the representative were the deceased in life.
Trustee Act, C.C.S.M. c.T160, s.53(1) [emphasis added] [WRHA Brief, Tab 6]

14.

The Fatal Accidents Act, section 2(1), provides:

2(1) Where the death of a person is caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the deceased to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, is liable for damages, notwithstanding the death of the deceased, even if the death was caused in circumstances amounting in law to culpable homicide.
Fatal Accidents Act, C.C.S.M. c.F50, s.2(1) [WRHA Brief, Tab 5]

8 15. Section 3(1) of the Fatal Accidents Act speaks to standing:

Every action under this Act shall be for the benefit of the spouse, commonlaw partner, support recipient, parent, child, brother, and sister, or any of them, of the deceased; and, except as hereinafter provided, shall be brought by, and in the name of, the executor or administrator.
Fatal Accidents Act, C.C.S.M. c.F50, s.3(1) [Emphasis added] [WRHA Brief, Tab 5]

16.

In Bains v. Jasser the court awarded damages to the administrators of the estates of two individuals arising from a fatal accident caused by a public nuisance on a right of way.
Bains v. Jasser [1983] B.C.J. No. 1020 at par. 19 and 32 [Plaintiff BOA2, Tab 29]

Issue 2: It is not plain and obvious that the pleadings fail to disclose a reasonable cause of action in public nuisance 17. A court will be reluctant to decide public nuisance cases on the basis of a legal attack on the pleadings without the benefit of all relevant evidence and in the absence of clear, binding and undistinguishable legal authority:
The case involves allegations of pollution, a matter of serious and current public concern. It is my opinion that the court should be most reluctant to decide such a case on the basis of a legal attack on the pleadings without having the benefit of considering all relevant evidence relating to the scope of the pollution, the relationship between the parties and how the business of the plaintiff has been affected. Before putting the plaintiffs out of court, which is what the defendants seek to do here, the court must be satisfied that each of the claims of the plaintiffs would be doomed to failure at trial on the facts as pleaded and on the proper application of clear, binding and undistinguishable legal authority. [Emphasis added].
Gagnier v. Canadian Forest Products Ltd., supra, at pg. 3 [Plaintiff BOA2, Tab 30]

18.

The Supreme Court of Canada has observed that the doctrine of public nuisance appears as a poorly understood area of the law.
Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at par. 52 [Manitoba BOA2, Tab 2]

9 19. A public nuisance is any activity which unreasonably interferes with the publics interest in questions of health, safety, morality, comfort or convenience, or unreasonable and substantial interference with the rights of all members of the community or the members of a class which come within the sphere or neighbourhood of its operation.
Ryan v. Victoria (City), supra, at par. 52 [Manitoba BOA2, Tab 2]; Stein v. Gonzales [1984] B.C.J. No. 3038, 14 D.L.R. (4th) 263 at par. 5 [Manitoba BOA2, Tab 4]; Heyes v. Vancouver (City), 2009 BCSC 651, at par. 154 [Manitoba BOA2, Tab 6]; Susan Heyes Inc. v. Vancouver (City), 2011 BCCA 77, at par. 37 [Plaintiff BOA2 Tab 31]

20.

Accordingly, the elements that a plaintiff must prove to sustain a claim in public nuisance are: a. The existence of an unreasonable and substantial interference with a public right or interest; and b. Damage suffered by the plaintiff that differs from that suffered by other members of the community.
Stein v. Gonzales, supra, at par. 3 & 4 [Manitoba BOA2, Tab 4]; Ryan v. Victoria (City), supra, at par. 52 [Manitoba BOA2, Tab 2]; Sutherland v. Canada (Attorney General) 2002 BCCA 416, 215 D.L.R. (4th) 1 at par. 27-29 [Manitoba BOA2, Tab 5]; Linden, A.M. and B. Feldthusen, Halsburys Laws of Canada - Torts. Chapter III, Section 2: Public Nuisance, supra [Plaintiff BOA2, Tab 32]

A. The existence of a public nuisance

21. The Re-Amended Statement of Claim alleges that the Government of Manitoba created or allowed a public nuisance including by establishing or causing or allowing the operation of a hospital emergency room that it knew was injurious to public health, and in particular to the health of vulnerable Aboriginal persons, and

10 by knowingly allowing an unreasonable and unabated interference with public safety to continue.
Re-Amended Statement of Claim, at paras. 64, 66, 68, 70-76

22.

Whether or not a particular activity constitutes a public nuisance is a question of fact. Many factors may be considered, including the inconvenience caused by the activity, the difficulty involved in lessening or avoiding the risk, the utility of the activity, the general practice of others, and the character of the neighbourhood. [Emphasis added].
Ryan v. Victoria (City), supra, at par. 53 [Manitoba BOA2, Tab 2]; see also G.H.L. Fridman, The Law of Torts in Canada, 2d ed. (2002), at p. 210 [Manitoba BOA2, Tab 15]; Klar, Linden, Cherniak, Kryworuk, Remedies in Tort, Vol. 3, Chapter 17, at par. 42 [Manitoba BOA2, Tab 16]; Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City), 2011 BCCA 77, at par. 41 [Plaintiff BOA2, Tab 31]

23.

The categories of public nuisance are broad and remain open. As eloquently stated by Denning L.J., As all lawyers know, the tort of public nuisance is a curious mixture. It covers a multitude of sins.
Morton v. Wheeler (1956), C.A., No. 33, cited in Bains v. Jasser [1983] B.C.J. No. 1020 at par. 18. [Plaintiff BOA2, Tab 29] Linden, A.M. and B. Feldthusen, Halsburys Laws of Canada - Torts. Chapter III, Section 2: Public Nuisance, New Categories, supra [Plaintiff BOA2, Tab 32] Heyes v. City of Vancouver, supra, at par. 133 [Manitoba BOA2, Tab 6]

24.

With respect to the question of whether the matters at issue involve a question of a public right or interest, Manitobans have a right to comprehensive health care as part of Canadas publicly-funded universal health care system. Emergency health care is an integral part of that system, and the Government of Manitoba has exclusive constitutional responsibility in that regard. As such, the public clearly has

11 an interest in questions of health, safety, comfort and convenience with respect to the operation of public hospitals.
The Constitution Act, 30 & 31 Victoria, c. 3. (U.K.), s. 92(7) [Plaintiff BOA2, Tab 34] Canada Health Act, R.S.C., 1985, c. C-6, s. 7 [Manitoba BOA1, Tab 2] Re-Amended Statement of Claim, paragraph 14

25.

With respect to the question of whether the interference with the publics interest in or right to emergency health care was unreasonable or substantial, such that it resulted in Brian Sinclairs suffering and death and risked the health, safety, comfort and convenience of other members of the public, that is a matter for trial.

26.

The court in Gagnier noted that the court should be most reluctant to decide such a case on the basis of a legal attack on the pleadings without having the benefit of considering all relevant evidence. Similarly in this case, the safety and health of the public in hospital emergency rooms is a matter of serious and current public concern, and questions of whether a public nuisance existed in this context should not be decided on the basis of a legal attack on the pleadings without having the benefit of considering all relevant evidence.
Gagnier v. Canadian Forest Products Ltd., supra, at pg. 3 [Plaintiff BOA2, Tab 30]

B. Particular or special damages

27. An individual may bring a private action in public nuisance by pleading and proving special damages.
Ryan v. Victoria (City), supra, at par. 52 [Manitoba BOA2, Tab 2]; see also Stein v. Gonzales, supra, at par. 3 & 4 [Manitoba BOA2, Tab 4]; Sutherland v. Canada (Attorney General), supra, at par. 27-29 [Manitoba BOA2, Tab 5]; Heyes v. City of Vancouver, supra, at par. 157 [Manitoba BOA2, Tab 6]; Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City), 2011 BCCA 77, at par. 41-42 [Plaintiff BOA2 Tab 31]

12 28. The phrase special damage is not used in the traditional sense of calculable pecuniary loss; rather, what is meant is particular damage, that is, a special loss suffered by an individual that is not shared by the rest of the community. In order to establish special damage all that should need to be proved is a significant difference in degree of damage between the plaintiff and members of the public generally.
Gagnier v. Canadian Forest Products Ltd., supra, at pg. 8 [Plaintiff BOA2, Tab 30] Linden, A.M. and B. Feldthusen, Halsburys Laws of Canada - Torts. Chapter III, Section 2: Public Nuisance, supra [Plaintiff BOA2, Tab 32]

29.

Particular damage is readily established where the plaintiff has suffered personal injury. Such loss is different from that suffered by the rest of the public. Thus, for example, a motorcyclist who is injured after his tire becomes trapped on a railroad track may maintain a private action in public nuisance. Though he may be but one of many users of the hazardous roadway, the personal injury is special damage over and above the general suffering or inconvenience to the public.
Ryan v. Victoria (City), supra [Manitoba BOA2, Tab 2]

30.

Whether or not other members of the public were previously adversely affected by a public nuisance is not determinative in the analysis of whether a plaintiff suffered special damage:
The fact that several members of the public are individually and adversely affected by the public nuisance does not produce a different result. Each member of the public uniquely affected by the public nuisance may assert a claim. The adverse effect upon one is not the adverse effect upon another.
Heyes v. City of Vancouver, supra, at par. 38 [Manitoba BOA2, Tab 6]; Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City), 2011 BCCA 77 [Plaintiff BOA Tab 31] (finding of public nuisance confirmed; appeal granted on defence of statutory authority)

13 31. Brian Sinclairs case is not one in which the public nuisance was uniformly injurious to all members of the public. The particular or special damages suffered by Brian Sinclair include: a. Suffering in pain as he sat in his wheelchair in the HSC ER for 34 hours, waiting for care; b. Losing self-respect and dignity as he sat alone in the HSC ER in a wretched state, vomiting over himself, without receiving any attention or care; and c. Dying.

Re-amended Statement of Claim, at paragraphs 38, 39, 42-45

32.

It is difficult to conceive a clearer case of special damage. This harm is clearly both greater in degree and different in nature from the inconvenience suffered generally by members of the public.

33.

For the Government of Manitoba to succeed in its argument that Brian Sinclairs damages are not special or particular, it would have to demonstrate that the suffering and death that Brian Sinclair endured is a consequence that was shared by the rest of the community. On the facts as pleaded, this is an absurd proposition.

34.

The question of whether Brian Sinclair suffered differently from others, and if so to what degree, is properly a matter for trial.
I think the short answer to the argument of the defendants that the public nuisance claim should be summarily dismissed is that it is not yet known whether the plaintiffs in this case have suffered differently from others and, if they have, to what degree. Those are factual issues which require evidence

14
not receivable in an application like the one now before me. [Emphasis added].
Gagnier v. Canadian Forest Products Ltd., supra, at pg. 8 [Plaintiff BOA2, Tab 30]

C. Adequacy of pleadings
35. The Government of Manitoba argues that the public nuisance claim should be struck out because insufficient facts are pleaded in regard to the allegation that Brian Sinclairs death was preceded by a litany of tragedies at the same institution. The Government suggests that this amounts to a bald allegation based on assumptions and speculations. 36. In Operation Dismantle, the Supreme Court identified the principle that allegations based on assumptions and speculation [are not required to] be taken as true. It has since become common practice for moving parties in motions to strike to use these words out of context. In Operation Dismantle, the quarrel was with allegations made by the plaintiff about the results of cruise missile testing that were in the nature of opinion and belief and that lie in the realm of conjecture, rather than fact. The Court stated it is simply not possible for a court, even with the best available evidence, to do more than speculate upon the likelihood of the federal cabinets decision to test the cruise missle [sic] resulting in an increased threat of nuclear war. The point is that allegations that are incapable of proof are not taken as proven in a motion to strike.
Operation Dismantle v. Canada, [1985) 1 S.C.R. 441, at par. 26-27 [Manitoba BOA2, Tab 8]; see also Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) [1990) O.J. No. 589 at p. 5 [Manitoba BOA2, Tab 9]

15 37. The allegation that Brian Sinclairs death was preceded by a litany of tragedies at the same institution is very much a question of fact in relation to matters that have occurred in the past, rather than conjecture, assumption or speculation. As such, this allegation is capable of proof. The plaintiff is entitled to attempt to adduce evidence and prove that problems in the HSC ER, particularly with respect to the treatment or lack of treatment of Aboriginal patients, were numerous and in some cases matters of public notoriety, judicial proceedings, and policy reviews. 38. Even so, the question of whether tragedies in the HSC ER were common is not, in and of itself, an essential element of the tort of public nuisance, though it may be one of several factors to consider in the analysis. The question of whether or not other members of the public were injured by a public nuisance does not appear to be raised at all in numerous public nuisance cases, including Ryan v. Victoria.
Ryan v. Victoria (City), supra [Manitoba BOA2, Tab 2]

D. Government of Manitobas liability

39. The Re-Amended Statement of Claim makes numerous allegations relevant to the questions of whether the Government of Manitoba was responsible for the creation of, or was aware of, the existence of a public nuisance and whether it had a duty to abate the risk created by the public nuisance.
Re-Amended Statement of Claim, at paras. 64, 66, 68, 72-75

16 40. It is also a fact that the Government of Manitoba has exclusive constitutional responsibility with respect to the establishment, maintenance and management of hospitals in and for the province.
The Constitution Act, 30 & 31 Victoria, c. 3. (U.K.), s. 92(7) [Plaintiff BOA2, Tab 34]

41.

The question of whether the Government of Manitoba knowingly allowed the operation of a health care facility for which it has exclusive constitutional responsibility in a manner that created a nuisance, and the question of whether it had a duty to abate the risk, are factual and legal questions which are not appropriate for determination in a motion to strike without an evidentiary record.

42.

The Court in Heyes posited a somewhat analogous situation in determining that a government authority may be responsible for public nuisances created by another party where it knows of the nuisance and allows it to continue:
The City approved of and permitted the use of its land for the construction and operation of the Canada Line. A land owner who permits others to use its land in a manner that creates a nuisance may, depending upon on the circumstances, be liable for that nuisance even though the nuisance is created by another. Liability will ensue when the owner authorizes or "permits a use of its land by another which can be expected to cause the alleged nuisance," or where the owner "knows, or reasonably ought to know, of a nuisance and allows it to continue or 'adopts' it": Karen Horsman & Gareth Morley, Government Liability: Law and Practice, looseleaf (Aurora, Ont.: Canada Law Book, 2007) at 6-10; Linden & Feldthusen (8th ed.) at 583; Talarico v. Northern Rockies (Regional District), 2008 BCSC 861 (CanLlI), 2008 BCSC 861 , 47 M.P.L.R. (4th) 242 at paras. 46-48; and Ross v. Wall 1980 CanLll 432 (BC CA), (1980),114 D.L.R. (3d) 758, 23 B.C.L.R. 294 at paras. 5-7 (C.A.).
Heyes v. City of Vancouver, supra, at par. 170-171 [Manitoba BOA2, Tab 6]; Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City), 2011 BCCA 77 [Plaintiff BOA Tab 31] (finding of public nuisance confirmed on appeal; appeal granted on defence of statutory authority)

17 43. The courts words in Steves v. South Vancouver are also useful by analogy:
The defendants duty to the public, in whose interest alone the power was conferred, was to exercise their power so as not to injuriously affect the public.... It would strange [sic], indeed, if in making the repairs for the purpose of enabling the traveling public to use the highway more advantageously, the defendants were under no obligation ... not to render its use dangerous to the lives of such persons, by the absence of reasonable precaution against obvious risk from falling trees.
Steves v. South Vancouver (1897) 6 B.C.R. 17 (S.C.), cited in Josephson v. Merritt (City) [2003] B.C.J. No. 2282 at par. 16 [Plaintiff BOA2, Tab 33]

44.

In this case, it would be strange indeed if the Government of Manitoba, which has exclusive responsibility as a state monopoly for the delivery of emergency health care in Manitoba, was under no obligation to take reasonable precautions to prevent or mitigate a known and obvious risk in the form of a hazardous emergency health care facility.

45.

The Government of Manitoba also suggests that the pleading should be struck because it does not allege any specific interaction between Brian Sinclair (or his estate) and Manitoba in relation to Mr. Sinclairs attendance at the HSC ER (at par. 27 of its brief). This is not a requirement of pleading public nuisance. Rather, it appears to be an example of Major J.s observation that the doctrine of public nuisance appears as a poorly understood area of the law.
Ryan v. Victoria (City), supra, at par. 52 [Manitoba BOA 2, Tab 2]

46.

The Government of Manitoba suggests that the Regional Health Authorities Act absolves the Government of Manitoba from liability for the public nuisance (par. 43-45 of its brief), and it also suggests that it may raise a statutory authority or public policy defence (par. 45-47 of its brief). It is free to advance such defences

18 in the action. However, the potential for the Government of Manitoba to present such defences should not prevent the Plaintiff from proceeding with the case.
Hunt v. Carey Canada Inc., supra, at par. 33 [WRHA Brief, Tab 2] Robertson v. Manitoba Keewatinowi Okimakanak Inc., supra, at par. 18 [Plaintiff BOA1, Tab 1] See also Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City), 2011 BCCA 77, at par. 58 [Plaintiff BOA2, Tab 31]

SUMMARY
47. It is not plain and obvious that the Plaintiffs claims against the Government of Manitoba in public nuisance cannot succeed. The Re-Amended Statement of Claim sets out all of the necessary elements of the cause of action. 48. The public nuisance claim in this context raises novel and difficult issues, but novelty and complexity do not constitute a basis for striking out a claim. As stated by the Supreme Court of Canada, where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society.
Hunt v. Carey Canada Inc., supra, at par. 52 [WRHA Brief, Tab 2]

RELIEF REQUESTED
49. The Plaintiff submits that the Government of Manitobas motion to strike should be dismissed, with costs payable in any event of the cause.

19 All of which is respectfully submitted this day of February, 2012.

___________________________ Vilko Zbogar ZBOGAR ADVOCATE 51 Crossovers St. Toronto Ontario Canada M4E 3X2 Vilko Zbogar T. 416-855-6710 F. 416-855-6709 vzbogar@zbogaradvocate.ca

___________________________ Murray Trachtenberg POSNER & TRACHTENBERG 710-491 Portage Avenue Winnipeg Manitoba Canada R3B 2E4 Murray N. Trachtenberg T: (204) 940-9602 F: (204) 944-8878 mtrachtenberg@ptlaw.mb.ca

Counsel for the Plaintiff