Province seeks dismissal of lawsuit by doctor accused in deadly Campbellton COVID outbreak

The New Brunswick Attorney General's office isseekingthe dismissal of a lawsuit filed against the province bya former Campbellton doctor accused in 2020 ofbreaking COVID-19 rules by failing to isolateand of being the source of a deadly outbreak.

Dr. Jean-Robert Ngola, 52, filed the lawsuit against the province, as well as the RCMP and Facebook, in January, alleging, among other things,"institutional anti-Black systemic racism,"abuse of power, negligence, defamation, malicious prosecution anda breach ofhis charter rights.

In a notice of motion filed with the Moncton Court of Queen's Bench, lawyers from the Office of the Attorney General requestthe actionagainst the province "be struck out in its entirety, or in part, for failing to disclose a reasonable cause of action."

They describe the plaintiff's amendedstatement of claim, filed April 26, as "repetitive, unreasonably prolix, confusing and unnecessarily complicated."

The61-page claim is replete "with pleadings of evidence, speculation and opinion as well as legal argument that are contrary to the rules of pleadings and ought to be struck," they allege in the court document filed June 28.

In the alternative, the lawyers requesta determination by the court of "certain questions of law raised in the amended claim that would dispose of the action, shorten the trial or result in a substantial saving of costs."

Otherwise, the lawyers contend, the matter should be struck based on several other grounds, including that the pleadingsmay "prejudice, embarrass or delay the fair trial of the action," are "scandalous, frivolous or vexatious and are an abuse of the process," andfail to contain a concise statement of the material facts upon which the plaintiff relies.

Defence responds

Asked for comment, Ngola'sToronto-based lawyer Joel Etienne said only:"Is the province defending on the facts? Has the premier provided sworn evidence yet?"

Premier Blaine Higgs is not named as a defendant, but Ngola's lawyers have repeatedly called on the premierto apologize for his role in the matter, whichsaw the doctor, who is from Congo,face racist threats on social media, be suspended, investigated criminally by theRCMPandcharged withbreachingthe province's Emergency Measures Actacharge thatwas later dropped.

During a news conference on May 27, 2020,Higgsblamed what was then acluster of COVID-19 cases in the Campbellton region and a resurgence of the coronavirus in the province on an "irresponsible individual" who returned towork at the hospitaland treated patients for two weeks.

Higgs never referred to Ngolaby name but saida medical professional in their 50s had travelled to Quebec for personal reasons, "was not forthcoming about their reasons for travel upon returning to New Brunswick and they did not self-isolate as a result."

A total of 41 peoplebecame infected, and two of them, who were in their 80s, died, including theprovince's first COVID-19 fatality.

Ngola, a family doctor, who also worked in the Campbellton hospital's emergency department,was labelledby some as "patient zero" after he tested positive for COVID-19, following an overnight trip to Quebec around May 13, 2020. He drove across the border to Montreal to pick up his four-year-old daughter, because her mother had to travel to Africa for a funeral, he said.He also made a stop inTrois-Rivires, he later confirmed.

The statement of claim allegesHiggs"knew or ought to have known, that the public was able to, and did identify Dr. Ngola connecting the dots between information disseminated at the press conference and information disseminated on social media."

With an early provincial election on the horizon, the defendants "shifted the blame" to Ngola for their "ineffective handling" of the Campbellton outbreak,the statement of claim alleges.

"The RCMP,acting in concert/partnership with the Public Safety Department, VitalitHealth Network[Ngola'semployer], and under the instruction of the Premier's Office, engaged in a campaign that ran roughshod over the legal process that was in place to deal with COVID-19 with [the] ultimate objective to find a scapegoat."

Ngola now practises in Quebec.

Department of Justice and Public Safety spokesperson Geoffrey Downeydeclined to respond to Etienne's comments.

"The department won't comment on matters before the court," he said in an email.

In the notice of motion, the province's lawyers argue "the Crown" can only be liable in civil actions related to "real or personal property or causing bodily injury,"under the Proceedings Against The Crown Act.

Ngola'samended statement of claim alleges, among other things:misfeasance in public office, negligence, wrongful and unlawful disclosure of personal information, malicious prosecution and negligent investigation.

Claims against the premier include violation of privacy legislation and breach of statutory duty.

The province's lawyers note Higgs is not named as a defendant and argue the plaintiff failed to establish the premier is an officer and/or an agent of the Crown who was acting in his capacity as such or that he acted outside of his authority.

Comments Higgs made at the May 27 news conference, which are quoted in the amended statement of claim, "ought to be struck as they are not material," they argue.

The province, whichfiled notice on May 9 of itsintent to defend against the lawsuit,is seeking costs and any other relief the court deems just.

The RCMPand Facebook, also known asMeta PlatformsInc., have not yet filed any responseto the statement of claim.

Doctor seeks net profits from Facebook

Ngola is seeking punitive, aggravated, special, and exemplary damagesfrom the defendants for their alleged "malicious actions and omissions in exposing [him] to harm, including racism, destruction of his reputation and career, and forceful relocation to another province."

The exact amounts are to be proven at trial, according to the court documents.

But thedamages should be based on the defendants' "deliberate and outrageous conduct," "enforce accountability," and "discourage similar wrongdoing in the future," his lawyer Etienne and co-counsel Christian Michaud of Moncton argue.

They are seekingadditional punitive damages from Facebookof three per centof its net worldwide profit for its alleged "malicious and callous conduct" and to deter it from facilitating the spread of harm to others.

This is required to "catch the attention of the social media industry," they contend.

Facebook,they allege"deliberately allowed the spread of racist and harmful [comments] to be posted, shared and commented on, for months on its platform."

They claim the companyhad a mechanism to identify and remove damaging content targeting Ngolabut refused to do so. Instead, it"profited from the engagement that harmful contentgenerated."

"The plaintiff seeks the honourable court's express disapproval of their actions."

"Facebook (a.k.a. Meta) must recognize the destruction and devastation that their action caused."

Ngola's lawyers are also seeking a declaratory order to implement restorative justice remedies and supervision by the court during its implementation, as well as costs.

None of the allegations have been proven in court.

Ngolahas requesteda trialby jury in Moncton.