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

The New Brunswick Attorney General's office is seeking the dismissal of a lawsuit filed against the province by a former Campbellton doctor accused in 2020 of breaking COVID-19 rules by failing to isolate and 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 and a breach of his charter rights.

In a notice of motion filed with the Moncton Court of Queen's Bench, lawyers from the Office of the Attorney General request the action against 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 amended statement of claim, filed April 26, as "repetitive, unreasonably prolix, confusing and unnecessarily complicated."

The 61-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 request a 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 pleadings may "prejudice, embarrass or delay the fair trial of the action," are "scandalous, frivolous or vexatious and are an abuse of the process," and fail to contain a concise statement of the material facts upon which the plaintiff relies.

Defence responds

Asked for comment, Ngola's Toronto-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 premier to apologize for his role in the matter, which saw the doctor, who is from Congo, face racist threats on social media, be suspended, investigated criminally by the RCMP and charged with breaching the province's Emergency Measures Act — a charge that was later dropped.

During a news conference on May 27, 2020, Higgs blamed what was then a cluster of COVID-19 cases in the Campbellton region and a resurgence of the coronavirus in the province on an "irresponsible individual" who returned to work at the hospital and treated patients for two weeks.

Higgs never referred to Ngola by name but said a 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 people became infected, and two of them, who were in their 80s, died, including the province's first COVID-19 fatality.

Ngola, a family doctor, who also worked in the Campbellton hospital's emergency department, was labelled by 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 in Trois-Rivières, he later confirmed.

The statement of claim alleges Higgs "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, Vitalité Health Network [Ngola's employer], 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 Downey declined 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's amended 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, which filed notice on May 9 of its intent to defend against the lawsuit, is seeking costs and any other relief the court deems just.

The RCMP and Facebook, also known as Meta Platforms Inc., have not yet filed any response to the statement of claim.

Doctor seeks net profits from Facebook

Ngola is seeking punitive, aggravated, special, and exemplary damages from 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 the damages 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 seeking additional punitive damages from Facebook of three per cent of 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 company had a mechanism to identify and remove damaging content targeting Ngola but refused to do so. Instead, it "profited from the engagement that harmful content … generated."

"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.

Ngola has requested a trial by jury in Moncton.