Gill v Fraser Health Authority, 2022 BCSC 1553
Health Authority’s Summary Trial Application Dismissed in Tragic Infant Death Case – Charter Damages to Proceed to Trial
Tony Leoni and Jesse Kendall recently argued a ground-breaking case relating to whether a health authority’s inaction can give rise, as a matter of law, to Charter damages.
In February 2017, after twice attending the Abbotsford Regional Hospital operated by Fraser Health Authority (“FHA”), three-year old Nimrat Gill tragically died in the emergency department. A lawsuit was commenced, alleging that she died as a result of a failure of the doctors and hospital staff to diagnose and properly treat her condition. It is also alleged that due to failures by the health authority to institute appropriate protocols for screening and treatment of infectious conditions, Nimrat was deprived of her right to life, liberty and security of person contrary to s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). It is claimed that the plaintiffs are entitled to Charter damages as a result.
FHA brought a summary trial application, alleging that FHA could not, as a matter of law, be liable for Charter damages because the Charter does not apply to it at all. In dismissing FHA’s application, Justice Smith undertook a thorough review of the law on this issue, and affirmed that a Charter breach can be found in a medical setting if a patient is denied a service that is essential to effective and meaningful medical care. Justice Smith also explained that on a summary trial application relating to an alleged Charter breach, the court must take careful pause before striking out a claim because the law in this area is “complex and developing”. Justice Smith determined that he must have regard to a complete evidentiary record at trial in order to properly determine the issue of the availability of Charter damages.
A link to the decision can be found here.