Sawatzky v. Riverview Health Centre Inc., (1998) 132 Man.R.(2d) 222 (QB)

• Judge: Beard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 13, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 132 Man.R.(2d) 222 (QB)

Sawatzky v. Riverview Health (1998), 132 Man.R.(2d) 222 (QB)

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. NO.048

Helene Sawatzky and Andrew Sawatzky (plaintiffs) v. Riverview Health Centre Inc. (defendant)

(CI 98-01-10245)

Indexed As: Sawatzky v. Riverview Health Centre Inc.

Manitoba Court of Queen's Bench

Winnipeg Centre

Beard, J.

November 13, 1998.

Summary:

Sawatzky was institutionalized with Parkinson's disease. The Public Trustee was his appointed guardian. Sawatzky's doctor issued a "do not resuscitate" order contrary to the wishes of Sawatzky's wife. Sawatzky and his wife sought injunctive and declara­tory relief challenging the "do not resusci­tate" order and applied for an interlocutory injunction to obligate the health care facility to attempt resuscitation pending trial. The Public Trustee chose not to become involved.

The Manitoba Court of Queen's Bench granted the interlocutory injunction, with directions as to how the matter was to pro­ceed.

Injunctions - Topic 2309

Mandatory injunctions - Interim or inter­locutory mandatory injunctions - Sawatzky was institutionalized with Parkinson's disease - He was not on life support and there was some question as to his level of functioning - The Public Trustee was his appointed guardian - Sawatzky's doctor issued a "do not resuscitate" order contrary to the wishes of Sawatzky's wife - Sawatzky and his wife sought injunctive and declaratory relief challenging the "do not resuscitate" order and applied for an interlocutory injunction to obligate the health care facility to attempt resuscitation pending trial - The Public Trustee chose not to become involved - The Manitoba Court of Queen's Bench granted the inter­locutory injunction - Damages were clearly not an adequate alternative remedy and the balance of convenience favoured an injunc­tion - The claim raised meritorious issues of right to life (Charter, s. 7), equality rights (s. 15) and cruel and unusual treat­ment (s. 12) - The status quo for five months (except for last 11 days) was an order to resuscitate - See paragraphs 1 to 41.

Medicine - Topic 3004

Relation with patient - General - Non-resuscitation and termination of life sup­port - [See Injunctions - Topic 2309 ].

Cases Noticed:

Pereira v. Smith (1993), 88 Man.R.(2d) 171; 51 W.A.C. 171 (C.A.), appld. [para. 14].

American Cyanamid v. Ethicon Ltd., [1975] 1 All E.R. 504 (H.L.), refd to. [para. 15].

J (a minor), Re, [1992] 4 All E.R. 614 (C.A.), disagreed with [para. 15].

Child and Family Services of Central Manitoba v. R.L. and S.L.H. (1997), 123 Man.R.(2d) 135; 159 W.A.C. 135 (C.A.), refd to. [para. 21].

Eldridge et al. v. British Columbia (At­torney General) et al. (1997), 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81; 151 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 28].

Airedale National Health Service Trust v. Bland, [1993] 1 All E.R. 821; 149 N.R. 321 (H.L.), refd to. [para. 35].

Statutes Noticed:

Mental Health Act, R.S.M. 1987, c. M-110; C.C.S.M., c. M-110, sect. 24.1(3), sect. 24.1(4) [para. 53].

Counsel:

Richard M. Beamish, for the plaintiffs;

E. Doreen Kelly, for the defendant;

Sherri Walsh, for the intervenor, Manitoba League for Persons with Disabilities Inc.

This application was heard before Beard, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on November 13, 1998.