Further to my last entry in this Blog, here are the court reasons in this case. the saga will continue....Will the Federal government be held liable in this case for the plaintiff contracting HIV? Will this result in a stricter policy to be applied to individuals who have contagious diseases and wish to migrate to Canada? Stay tuned.
Whiteman v. Iamkhong
Between
Percy Wilbert Whiteman, Plaintiff, and
Suwalee Iamkhong a.k.a. Ricky Iamkhong, Her Majesty the Queen
in Right of Canada, The Attorney General of Canada,
Citizenship and Immigration Canada, Her Majesty the Queen in
Right of Ontario, Toronto Public Health Department, Dr. Martin
Taylor and Zanzibar Tavern Inc., Defendants
[2010] O.J. No. 966
2010 ONSC 1456
Court File No. 08-CV-351761PD3
Ontario Superior Court of Justice
M.A. Code J.
Heard: January 4, 2010.
Judgment: March 10, 2010.
(137 paras.)
--------------------------------------------------------------------------------
REASONS FOR JUDGMENT
M.A. CODE J.:--
A. Overview
1 The Plaintiff Whiteman ("Whiteman") commenced an action against nine Defendants by Statement of Claim filed on March 31, 2008. It has since been amended to remove one Defendant. The Plaintiff's essential allegation is that he contracted HIV from his spouse, the Defendant Iamkhong, an immigrant to Canada from Thailand who had worked in various aspects of the "sex trade". His claim is that she failed to disclose her HIV positive status to him and that the other Defendants, including all three levels of government, were negligent in failing to protect him.
2 The Defendant Ontario ("Ontario"), the Defendant Toronto ("Toronto") and the Defendant Canada ("Canada") now move pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the Plaintiff's claim on various bases. The Defendant Iamkhong ("Iamkhong") joins in the Motion on one narrow basis relating to a limitation period issue. The Defendants Dr. Taylor and the Zanzibar Tavern have not joined in the Motion.
3 I note at the outset that the Plaintiff has sued three separate federal government entities, namely, the Queen in Right of Canada, Citizenship and Immigration Canada and the Attorney General of Canada. Counsel for Canada submits that it is proper to name the Attorney General of Canada, as provided in s. 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, but that the Ministry of Citizenship and Immigration is not a legal entity capable of being sued. The Plaintiff accedes to the position taken on this point by the Government of Canada. It is ordered that the pleadings be amended to remove Citizenship and Immigration Canada as a party.
4 Four grounds are advanced in support of the Motion by the various Defendants, as follows:
(i)
The main ground in support of the Motion, advanced jointly by Ontario, Toronto and Canada, is that the pleadings disclose no reasonable cause of action and ought to be struck pursuant to Rule 21.01(1)(b). The argument revolves around the scope of the tort of regulatory negligence and whether various public duties of all three levels of government translate into private law duties that are owed to the Plaintiff Whiteman. See: Cooper v. Hobart, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada (2001), 206 D.L.R. (4th) 211 (S.C.C.);
(ii)
A subsidiary ground, also advanced jointly by Ontario, Toronto and Canada, is that the claim is barred by a limitation period defence and ought to be struck pursuant to Rule 21.01(1)(a). However, none of these three Defendants have delivered a Statement of Defence and so the alleged limitations defence has not yet been pleaded nor has the Plaintiff had an opportunity to file a Reply to any such defence. See: Beardsley v. O.P.P. (2001), 57 O.R. (3d) 1 (C.A.). The Defendant Iamkhong has filed a Statement of Defence where the limitations defence is raised and she joins in this part of the Motion;
(iii)
The three government Defendants advance a further basis for striking certain parts of the Statement of Claim. In addition to his main claim, alleging regulatory negligence, the Plaintiff advances a number of secondary causes of action. In particular, the Plaintiff alleges breach of fiduciary duty, breach of contract, conspiracy, fraud and violations of s. 7 of the Charter of Rights and Freedoms against the Defendants. The Motion seeks to strike these secondary claims pursuant to Rule 21.01(1)(b), on the basis that they are either derivative of the main claim alleging negligence or that they fail to plead essential elements and facts. Rules 25.06(2) and 25.11 may have some bearing on this part of the Motion;
(iv)
The final basis advanced in support of the Motion is an argument made only by the Defendant Canada. Its counsel submits that the Plaintiff's claim depends upon collateral attacks on various immigration officials' decisions and that these issues must first be raised by way of judicial review in the Federal Court, prior to commencing the present law suit in this Court. See: TeleZone Inc. v. Canada 2008 ONCA 892. This part of the Motion challenges the jurisdiction of the Court and is therefore brought pursuant to Rule 21.01(3).
B. The Facts
5 All parties agree that on a Motion pursuant to Rule 21.01(1)(b), alleging "no reasonable cause of action", the facts are to be taken as pleaded in the Statement of Claim unless they are patently ridiculous or incapable of proof. See: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Lysko v. Braley et al (2006), 79 O.R. (3d) 721 (C.A.); Carney Timber Co. v. Pabedinskas, [2008] O.J. No. 4818 per Strathy J. at para. 18.
6 The Plaintiff, nevertheless, filed extensive affidavit material that supplements his pleadings. Although this would appear to violate the plain language of Rule 21.01(2)(b), that "no evidence is admissible on a motion ... under clause (1)(b)", counsel for the Plaintiff submitted that the affidavits are admissible, with leave, in response to that part of the Motion that raises limitations defences (that is, under Rule 21.01(1)(a)). He also submitted that the affidavits are admissible in relation to those parts of the Motion that rely on Rules 25.06 and 25.11 in that the Plaintiff wishes to amend or correct certain deficiencies or imperfections in the pleadings and the affidavits set out the bases for various amendments.
7 Given that the main bulk of the Motion falls to be decided under Rule 21.01(1)(b), I will set out the facts as pleaded in the Statement of Claim and without reference to the affidavits. The limitations defence issue is discrete and severable and, in any event, has little merit at this early stage. I will address that issue separately.
8 The claim against Iamkhong is for negligence, fraud, conspiracy, assault and intentional infliction of emotional distress. Damages of $10 million and punitive damages are sought. The facts alleged in support of the claim are that she intentionally failed to disclose her HIV positive status to Whiteman "in order to secure sponsorship into Canada via marriage". It is alleged that Iamkhong initially entered Canada around April, 1995 pursuant to a "work visa" that allowed her to work at the Zanzibar Tavern in Toronto as a "burlesque adult entertainment dancer". It is alleged that, prior to entry, she had to "undergo a medical examination by a doctor in Hong Kong certified by Immigration Canada". The pleadings assert that Iamkhong "was HIV positive when [Immigration Canada] processed and granted her work visas for Zanzibar's strip club".
9 Whiteman, who resides in Toronto, met Iamkhong at the Zanzibar Tavern in 1996 and they were married on June 21, 1997. Thereafter, they commenced the process of applying for permanent residence in Canada with Whiteman acting as Iamkhong's sponsor. During this process there was a further medical examination conducted on March 17, 1999 by Dr. Taylor, "a certified doctor registered with Immigration Canada as an authorized doctor allowed to conduct the necessary immigration medical examination of prospective Permanent Residence/Landed Immigrant applicants". The pleadings assert that "Dr. Taylor failed and/or neglected to test Iamkhong for HIV as was required under the Immigration Canada routine medical examination of all prospective Immigrants to Canada". In the alternative, the pleadings assert that if Dr. Taylor "was not required to test for HIV then [he] failed and/or neglected to make sufficient inquiries about Iamkhong's past medical history, employment history, etc. which had he done so would have raised sufficient cause to test Iamkhong for HIV".
10 Iamkhong completed her "In Canada Application for Permanent Residence" on May 5, 1999 and "intentionally answered falsely when she responded 'no' to the question: 'Have you had or still have any serious disease or mental or physical disorder?'" Whiteman "submitted his Sponsorship Application on behalf of Iamkhong" on December 11, 1999. Iamkhong then had her "mandatory interview with Immigration Canada" on July 24, 2000. During the interview, Iamkhong failed to disclose "her HIV positive status ... nor did Immigration Canada make any inquiries about same despite several aspects of Iamkhong's past medical history, employment history and marital history which would make such a question obvious".
11 Whiteman goes on to plead that his "sponsorship contract" with Immigration Canada includes "a ten year undertaking ... to be completely financially responsible for Iamkhong's essential needs including all medical expenses for a period of ten years and to reimburse to the Government of Canada any social assistance benefits that Iamkhong may receive throughout that ten year period."
12 On March 28, 2001, Iamkhong was granted Landed Immigrant status. On February 28, 2004, Iamkhong was "admitted to Toronto General Hospital with what was later determined to be signs of AIDS and meningitis". As a result of various tests, it was "later confirmed that Iamkhong was suffering from the advanced stages of AIDS". The Toronto General Hospital discharge report dated March 17, 2004 "noted that Iamkhong knew of her HIV positive status since 1995, while residing in Hong Kong and prior to her application for a work permit in Canada".
13 On March 28, 2004, Whiteman "received the devastating news that he was HIV positive". His doctor "was able to determine that based on the Plaintiff's HIV levels he likely contracted the HIV sometime in 2003".
14 On May 1, 2004, Iamkhong "was arrested and charged with criminal negligence and aggravated assault against the Plaintiff". On October 16, 2006, Whiteman's doctor testified at Iamkhong's criminal trial to the effect that "the Plaintiff's HIV viral DNA matched Iamkhong's viral DNA thus confirming that Iamkhong was in fact the person who infected the Plaintiff with HIV". On May 16, 2007, Iamkhong was convicted of criminal negligence and aggravated assault against the Plaintiff Whiteman.
15 The above dates are important to the argument about limitation period defences. The Plaintiff commenced this action on March 31, 2008, that is, four years and three days after his doctor told him he was HIV positive but less than two years after the doctor's public testimony at the criminal trial concerning the DNA test results.
16 The claim against Canada is "for negligence, breach of contract, breach of fiduciary duty, vicarious liability, conspiracy, complicity to fraud, breaches of section 7 of the Charter". Damages in the amount of $12 million and punitive damages are sought. In addition, various remedies specific to immigration law are sought, including declarations that the sponsorship agreement and sponsorship undertaking are void as well as a "Removal Order pursuant to the Immigration and Refugee Protection Act [I.R.P.A.] requiring Iamkhong to leave Canada immediately upon her release from prison" or, in the alternative, "an Order requiring an Admissibility Hearing" pursuant to I.R.P.A. It is these immigration law remedies that particularly raise concerns about this Court's jurisdiction.
17 Whiteman's claim against Canada is further particularized at para.5 of the Statement of Claim:
5.
The Plaintiff's claims against the Defendants HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA, THE ATTORNEY GENERAL OF CANADA, and CITIZENSHIP AND IMMIGRATION CANADA, arise from, inter alia: the negligent failures of several government bodies and agencies who knew, or ought to have known, that Iamkhong was HIV Positive and failed to disclose said fact to the appropriate government health agencies, negligently and intentionally failed to warn the Plaintiff of the health condition of Iamkhong prior to accepting his application for sponsorship of Iamkhong, negligently and intentionally allowed the Plaintiff to enter into a sponsorship contract without full disclosure and without providing consideration in exchange for the sponsorship undertaking, negligently were complicit and/or were willfully blind to and/or assisted Iamkhong in perpetuating her fraud, and engaged in conspiracy to later cover up their negligence and knowledge.
18 Whiteman pleads that Canada is "the legal entity liable for the torts and breaches of contract committed by its agents and servants", pursuant to ss.3 and 23(1) of the Crown Liability and Proceedings Act.
19 Further particulars of Canada's alleged negligence are set out at paras.34, 35 and 36:
34.
The Plaintiff pleads that Immigration Canada through its employees and agents negligently failed to analyse the application for errors, lies or omissions and/or Immigration Canada through its employees and agents failed and/or neglected to investigate Iamkhong's application and failed and or neglected to compare the application with the medical test results.
35.
In the alternative, Immigration Canada through its employees and agents failed to review or inquire about Iamkhong's medical history, employment history and test results with respect to determining whether Iamkhong was considered or would be considered in the near future a threat to public health and might reasonably be expected to cause excessive demand on health or social services.
36.
In the further alternative, the Plaintiff pleads that Immigration Canada through its employees and agents knew, or ought to have known, that Iamkhong was HIV positive and that she had answered falsely on her application form yet it failed and/or neglected to reject Iamkhong's application for permanent residence.
20 At paras. 39 and 40 of the Statement of Claim, it is asserted that "Immigration Canada through its employees and agents owed Canadians a greater duty of care to analyse and consider whether Iamkhong was considered or would be considered in the near future a threat to public health":
40.
In addition, in light of her HIV positive status and the industry Iamkhong sought to work in Immigration Canada had a greater duty of care to protect Canadians since in working as a burlesque dancer at Zanzibar Strip Club there is a risk that the public, fellow employees and patrons will come into contact with Iamkhong's bodily fluids.
21 The pleadings go on to detail the alleged negligence by Canadian officials at the July 24, 2000 mandatory permanent residence interview and during the ensuing process:
44.
The Plaintiff further pleads that at no time during that interview did Immigration Canada discuss with Iamkhong her medical test results regarding HIV, nor did it confront or seek clarification about the false statement made in her application. At no time, prior to approving her application did Immigration Canada alert the proper health officials and/or ensure that the proper health officials had been advised of Iamkhong's presence in Canada and her HIV positive status thus failing and/or neglecting to protect Canadians including the Plaintiff.
22 The pleadings also relate how Whiteman tried to have his sponsorship of Iamkhong "voided on compassionate grounds", by writing a letter to Immigration Canada advising of Iamkhong's criminal conviction. His attempt was unsuccessful.
23 In a concluding paragraph 56, Whiteman reiterates the various ways in which he claims Canada is "vicariously liable for the acts of its agents and/or employees ... for breaches of fiduciary duty and duty of care, breaches of contract, conspiracy, complicity to fraud and negligence":
56. ...
(d)
Immigration Canada breached its fiduciary duty and its duty of care owed to Canadians and failed to protect Canadians including the Plaintiff.
(e)
Immigration Canada failed to enforce their regulations, policies and procedures regarding mandatory testing for HIV in-force at the time of the application;
(f)
In the alternative, if testing for HIV was not mandatory, Immigration Canada failed to properly set policies and regulations for its assessors and certified doctors to investigate an immigrant applicant's past history to determine whether they were a high risk and therefore ought to be tested;
(g)
Immigration Canada failed to review Iamkhong's HIV viral load in order to determine whether she would place excessive demand on the public purse;
(h)
Immigration Canada failed to adequately staff, train and operate its divisions, departments resulting in ineffective and negligent processing of immigration applications and medical test results thus resulting in ineffective and negligent protection of the public;
(i)
Immigration Canada failed to adequately train its doctors with respect to what to ask and what to look for when examining an immigration applicant;
...
(m)
Immigration Canada knew or ought to have known about Iamkhong's HIV positive status and failed to inform the Plaintiff;
(n)
Immigration Canada through its actions aided Iamkhong in deceiving the Plaintiff about her health condition and in doing so place the Plaintiff at risk of infection;
(o)
Immigration Canada knew or ought to have known that Iamkhong had not disclosed her HIV status to the Plaintiff and did nothing about it thereby assisting and aiding Iamkhong in her conspiracy to defraud the Plaintiff;
(p)
Immigration Canada, concealed, destroyed or amended its records after it learned from the Plaintiff to the fact that Iamkhong had negligently infected him with HIV;
(q)
Immigration Canada, attempted to conceal this negligence after being informed of this situation by the Plaintiff via his letter.
24 This concluding paragraph 56 also pleads the basis for the specific immigration law remedies sought by Whiteman such as voiding the sponsorship agreement and undertaking that he had given to the Minister as well as removing Iamkhong from Canada.
25 In contrast to the lengthy and detailed pleadings summarized above, that are referable to Iamkhong and to Canada and its agents, the pleadings in relation to Ontario and Toronto are sparse. These pleadings are found, virtually in their entirety, in two conclusory or summary paragraphs. Both paragraphs lump Ontario and Toronto together with Dr. Taylor, even though it is pleaded elsewhere that Dr. Taylor had carried out the medical examination in March, 1999 on behalf of Immigration Canada. The two paragraphs are as follows:
6.
The Plaintiff's claims against the Defendants HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO, TORONTO PUBLIC HEALTH DEPARTMENT and DR. MARTIN TAYLOR, arise from, inter alia; the negligent failures of several government bodies, agencies including the Ontario Ministry of Health and doctors who knew, or ought to have known, that Iamkhong was HIV Positive or in the alternative, negligently and/or intentionally failed to administer the proper medical examination as required under the Immigration process; failed to report Iamkhong's HIV positive status to her family physician and/or the appropriate government health agencies / public health departments so that they could monitor Iamkhong and contact / protect her sexual partners including the Plaintiff, negligently and/or intentionally failed to comply with their legislated requirements related to Health Protection and Promotion Act, negligently and/or intentionally failed to take steps to protect the public including the Plaintiff from spread of said disease, negligently were complicit and/or assisted the Defendant Iamkhong in perpetuating her fraud, and engaged in conspiracy to later cover up their negligence and knowledge.
...
57.
The Plaintiff states that HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and TORONTO PUBLIC HEALTH are vicariously liable for the acts of Dr. Taylor, its agents and/or employees and is liable through the acts of its employees and/or agents for breaches of fiduciary duty and duty of care, breaches of contract, conspiracy, complicity to fraud and negligence the particulars of which are as follows:
(a)
It failed to test the Defendant Iamkhong for HIV when it was considering her application for a work visa on the basis of her country in origin, her passed [sic] drug abuse and her medical and employment history in Hong Kong;
(b)
It failed to test Iamkhong for HIV when it was considering her application for Landed Immigrant Status;
(c)
Dr. Taylor failed test Iamkhong for HIV as required by the Immigration Canada medical examination;
(d)
Dr. Taylor and/or Immigration Canada failed to advise Iamkhong that the medical tests conducted did not include an HIV test;
(e)
In the alternative, if testing was not mandatory then Her Majesty the Queen in the Right of Ontario and Dr. Taylor failed to make inquiries about Iamkhong's past medical history, partners and employment had they done so they would have learned information that would have given them cause to test Iamkhong for HIV and to protect the public;
(f)
If Dr. Taylor did test Iamkhong for HIV than he failed to report Iamkhong's HIV status reportable disease to the Minister of Health and/or Toronto Public Health and/or the appropriate government agencies and its employees and agents and failed and/or neglected to place Iamkhong on the reportable disease list;
(g)
In the alternative, if Her Majesty the Queen in the Right of Ontario and/or Toronto Public Health and/or its affiliated health departments were alerted to Iamkhong's HIV status / reportable disease they failed to contact Iamkhong to educate her on the risks of infecting others with the HIV disease; they failed to contact her to inquire about her sexual partners who may have been or may be at risk; they failed to require Iamkhong to notify her sexual partners of her HIV condition and/or they failed to notify Iamkhong's partners, including the Plaintiff, directly; they failed to order Iamkhong pursuant to section 22 of the Health Protection and Promotion Act to disclose the identity of her sexual partners so that they may be advised that they may have been exposed to HIV;
(h)
In the alternative, they honoured Iamkhong's request that the Plaintiff not be contacted thereby becoming complicit and assisting Iamkhong in perpetuating her fraud;
(i)
They breached their duty to protect and promote the health of Canadians including the Plaintiff;
(j)
They failed to enforce their regulations, policies and procedures regarding reportable diseases;
(k)
They failed to adequately staff, train and operate its divisions, departments resulting in ineffective and negligent monitoring of reportable diseases thus resulting in ineffective and negligent protection of the public;
(l)
They were negligent in failing to amass the necessary human resources to adequately and properly staff a public health department in order to protect the public from the reckless, uneducated spread of HIV;
(m)
They were negligent in failing to have a functioning health unit to address educating immigrants entering Canada / Ontario about the spread of HIV;
(n)
They were negligent when they failed to have any or adequate reportable disease information system;
(o)
They were negligent in their failure to have implemented an adequate disease information system; and
(p)
They attempted to conceal their negligence after being informed of this situation.
26 The only other paragraphs in the Statement of Claim that are relevant to Ontario and Toronto are paras. 28 - 32. It will be recalled, as summarized above, that Whiteman's main claim (at paras. 25-27) is that Dr. Taylor "failed and/or neglected to test Iamkhong for HIV" and "failed and/or neglected to make sufficient inquiries ... which had he done so would have raised sufficient cause to test Iamkhong for HIV". Paras. 28-32 then follow and raise an alternative theory, namely, that Dr. Taylor did test Iamkhong for HIV and either did or did not report the results:
28.
In the further alternative, the Plaintiff pleads that if Dr. Taylor tested Iamkhong for HIV and received her HIV positive test results he failed and/or neglected contrary to section 25 of the Health Protection and Promotion Act to report her reportable disease, namely HIV, to the proper medical officer or health unit department as required by the Act.
29.
In addition, the Plaintiff pleads that Dr. Taylor failed and/or neglected to issue a written order against Iamkhong when he knew, or ought to have known, that she was not under the care of any doctor with respect to her HIV/AIDS and that she refused to put herself under the care of a physician in that regard. In particular and contrary to Section 22 of the Health Protection and Promotion Act Dr. Taylor failed and/or neglected to issue a written order requiring Iamkhong to place herself under the care of a doctor and requiring her to conduct herself in such a manner as not to expose another person, such as the Plaintiff, to infection.
30.
In the alternative, if it is found that Dr. Taylor did report Iamkhong's HIV positive status to the appropriate health officials, which is denied, the Plaintiff pleads that Her Majesty the Queen in the Right of Ontario, its employees or agents failed and/or neglected to place Iamkhong on the reportable disease list / database and/or failed and/or neglected to alert the appropriate Public Health Department in Iamkhong's health district of her HIV positive status.
31.
The Plaintiff pleads that by failing to alert the appropriate Public Health department in Iamkhong's district Her Majesty the Queen in the Right of Ontario through its employees and agents failed and/or neglected to initiate the process of monitoring, education, assistance and partner / contact tracing offered by these Public Health departments.
32.
The Plaintiff further pleads that Immigration Canada and Her Majesty the Queen in the Right of Ontario failed and/or neglected to properly monitor, educate, follow up, keep track of Iamkhong and her HIV status and progression when they knew or ought to have known of her HIV status thus placing the public including the Plaintiff at significant risk of infection.
27 One final part of the pleadings that is particularly relevant to Toronto is para.18 where the Plaintiff sets out the legal rationale for identifying "Toronto Public Health" or "the Toronto Public Health Department" as a Defendant:
18.
The Defendant, Toronto Public Health is the municipal entity responsible for educating, monitoring and investigating residents with reportable diseases pursuant to the Health Protection and Promotion Act, R.S.O. 1990, c. H7.
28 No defence pleadings have been filed by any of the Moving Parties with the exception of the Defendant Iamkhong. Her Amended Statement of Defence pleads that the claim "is statute barred" and relies on the Limitations Act 2002, S.O. 2002, c. 24, Sch.B. It also admits a number of the Plaintiff's factual allegations. In particular, she admits that she "underwent two medical examinations for immigration purposes. One was in 1996 as part of her application for a work permit. The other examination was in March, 1999 as part of her application for permanent residence". In addition, she "admits that she tested positive for HIV in Hong Kong prior to applying to work in Canada". She is "semi-literate" and is "from Thailand" and asserts that she "did not trust the result she received in Hong Kong". She believed that she was subsequently tested for HIV "during the course of her immigration medical examinations" and she "assumed that if the test results were positive she would be informed". She was not so informed and, as a result, she "believed that she was not infected with HIV". At various points in the immigration process and during her relationship with the Plaintiff she "did not mention HIV because she did not believe that she had HIV".
C. The Limitation Period Issue
29 Although Canada, Ontario and Toronto all raised the limitation period issue in their Notices of Motion and in their facta, counsel for all three Defendants conceded in oral argument that they were not pressing this issue.
30 The Ontario Court of Appeal's decision in Beardsley v. O.P.P., supra at paras.21-2, explains why counsel's concession was a wise one. In that case, the Court held:
The motion to strike based on the expiry of a limitation period could only be made pursuant to rule 21.01(1)(a), which provides that a party may move for the determination of a question of law "raised by a pleading". The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded. Although we agree that it would be unduly technical to require delivery of a statement of defence in circumstances where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired, a plain reading of the rule requires that the limitation period be pleaded in all other cases. See Pollakis v. Corner (1975), 9. O.R. (2d) 691 (H.C.J.).
Plaintiffs would be deprived of the opportunity to place a complete factual context before the court if limitation defences were determined, on a routine basis, without being pleaded. Adherence to rules that ensure procedural fairness is an integral component of an appearance of justice. The appearance of justice takes on an even greater significance where claims are made against those who administer the law. The limitation defence to the claims for false arrest, false imprisonment and negligence should not therefore be determined, without being pleaded, and the pleadings being completed. That portion of the order that dismisses the claims for false arrest, false imprisonment and negligence will accordingly be set aside.
31 It is not "plain and obvious" from a review of the Statement of Claim that the two year limitation period had passed when Whiteman commenced this action on March 31, 2008. Just over four years had passed since Whiteman's discovery that he was HIV positive on March 28, 2004 and just under four years had passed since Iamkhong was charged with various criminal offences on May 1, 2004. However, less than two years had passed since the October, 2006 testimony was given at a public trial concerning the results of DNA testing. It is far from certain on the present record that "the claim was discovered" on either of the dates in 2004. Additional facts are needed, such as whether Whiteman had a number of sexual partners, how much information the police or Crown shared with Whiteman about the criminal investigation of Iamkhong and, in particular, when Whiteman learned the results of the DNA testing. It would be unfair to attempt to resolve these issues before the pleadings are closed.
32 The Defendant Iamkhong is in a somewhat better position to raise the limitations defence as she has at least pleaded it. However, Whiteman has not yet filed a Reply. Iamkhong submits that the discoverability principle does not require that a Plaintiff know with "perfect certainty" that they have a claim against the Defendant. Rather the test, as stated in cases like Coutanche et al v. Napoleon Delicatessen et al (2004), 72 O.R. (3d) 122 at 132 (C.A.), is whether a "reasonable person would have known ... that there was a possible claim". I am not satisfied that this test can be applied fairly on the present record without the benefit of all the relevant facts.
33 I should note that Whiteman's counsel advises that he intends to rely on s. 16(1)(h) of the Limitations Act 2002 which provides that "there is no limitation period in respect of ... a proceeding arising from a sexual assault if at the time of the assault one of the parties ... was in a position of trust". Needless to say, all of the facts necessary to resolving whether this provision could apply in this case have yet to be pleaded. Once again, this underlines the point that it is premature to decide the limitation period issue at this stage.
34 For all these reasons, the Motion brought by the four Defendants under Rule 21.01(1)(a), based on a limitations period defence, is dismissed.
D. The Claim Against Ontario and Toronto
35 The test on a Rule 21.01(1)(b) Motion alleging "no reasonable cause of action" is well known. Accepting the facts as pleaded, is it "plain and obvious" or "beyond doubt" that the claim cannot succeed, for example, due to some "radical defect". The Statement of Claim must be read generously with allowance made for deficiencies in drafting. Finally, a claim must not be dismissed simply because it is novel. It goes without saying that the onus is on the Moving Party. See: Hunt v. Carey, supra; Toronto-Dominion Bank v. Deloitte Haskins & Sells (1991), 5 O.R. (3d) 417 (S.C.J.).
36 In applying the above test, the pleadings must "set out all of the necessary elements of the asserted claims" and must "set out material facts sufficient to support the asserted causes of action", rather than pleading "simply conjecture, assumptions or speculation unsupported by material facts" or pleading "mere conclusions of law". See: Hunter v. Bravener, [2003] O.J. No. 1613 (C.A.).
37 I am satisfied that Whiteman's claim against Ontario has no chance of success. It contains a number of radical defects, both factual and legal. Whiteman's principal claim against Ontario alleges negligence. As set out above, para. 6 of the Statement of Claim alleges that Ontario "knew, or ought to have known, that Iamkhong was HIV positive" and then failed to take various preventive steps to protect Whiteman and the public, including failing "to comply with their legislated requirements related to the Health Protection and Promotion Act".
38 These assertions are "mere conclusions of law" and must be supported by "material facts sufficient to support the asserted cause of action". See: Hunter v. Bravener, supra. The facts asserted in support of this claim are found at para. 57 where it is alleged that Ontario is "vicariously liable for the acts of Dr. Taylor". According to the pleadings, Dr. Taylor performed the medical examination of Iamkhong on behalf of Immigration Canada, as a step in her federal immigration sponsorship application. There is no basis in the facts pleaded, or in law, to support the assertion that Dr. Taylor was a servant, agent or employee of Ontario. In oral argument, counsel for the Plaintiff advanced the argument that Ontario could be vicariously liable for the negligence of a medical doctor because it has legislated a public payment regime and a professional discipline regime for doctors. There is no authority for this argument and it borders on the frivolous. Payment of doctors through public funds and discipline of doctors through the College of Physicians and Surgeons does not convert them into employees or agents of Ontario.
39 The pleadings also contain an alternative theory, at para. 57(g) and (h) and paras. 30, 31 and 32, to the effect that Dr. Taylor did test for HIV and "did report Iamkhong's HIV positive status to the appropriate health officials", at which point Ontario failed to take appropriate preventive steps. This alternate theory does not appear to be a serious one as it runs counter to the Plaintiff's main theory, namely, that Dr. Taylor did not test for HIV. Nevertheless, accepting the alternative theory as pleaded, it faces insuperable legal obstacles. The statutory scheme to prevent "the spread of disease", as pleaded in the Statement of Claim, is the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the HPPA). It clearly enacts a broad public law duty in s. 2, to protect "the health of the people of Ontario". Sections 25 and 26 impose a duty on physicians, who learn that a patient "may have a reportable disease" or "may be infected with an agent of a communicable disease" to "report thereon to the medical officer of health of the health unit in which the professional services are provided". AIDS is a "communicable disease" pursuant to O. Reg. 558/91, and HIV is "an agent of a communicable disease". Accordingly, if Dr. Taylor learned that Iamkhong was HIV positive he had a legal duty to report the matter to the "medical officer of health". Section 61 provides that the "board of health" is the legal entity responsible for "carrying out" the above provisions. In addition, the Minister of Health is given certain powers in s. 83 to give written directions to local boards of health. Finally, s. 95(3) provides that the "board of health" is the entity that is liable "for damage caused by negligence". Section 95(1) expressly exempts the "medical officer of health" and other officials from any "action or other proceeding for damages" in relation to "any act done in good faith in the execution ... of any duty or power under this Act or for any alleged neglect or default in the execution in good faith of any such duty or power".
40 Therefore, the proper suable entity on Whiteman's alternative theory would be the local "board of health" and not Ontario. There is nothing in the HPPA to indicate that Ontario is vicariously liable for the negligence of a local "board of health" in relation to some individual case like the present one.
41 However, Whiteman's negligence claim against Ontario faces additional obstacles. Even if Ontario could somehow be found to have a legal duty relating to the above alternative theory, the Court of Appeal has held that the relevant statutory scheme enacts public duties and does not give rise to a private law duty of care. In Eliopoulos v. Ontario (Minister of Health and Long-Term Care) (2006), 82 O.R. (3d) 321 (C.A.), a case dealing with Ontario's alleged failure to prevent the spread of West Nile Virus in 2002, Sharpe J.A. gave the judgment of the Court (at para.17):
In my view, these important and extensive statutory provisions create discretionary powers that are not capable of creating a private law duty. The discretionary powers created by the HPPA are to be exercised, if the Minister chooses to exercise them, in the general public interest. They are not aimed at or geared to the protection of the private interests of specific individuals. From the statement of purpose in s. 2 and by implication from the overall scheme of the HPPA, no doubt there is a general public law duty that requires the Minister to endeavour to promote, safeguard, and protect the health of Ontario residents and prevent the spread of infectious disease. However, a general public law duty of that nature does not give rise to a private law duty sufficient to ground an action in negligence. I fail to see how it could be possible to convert any of the Minister's public law discretionary powers, to be exercised in the general public interest, into private law duties owed to specific individuals. Although Mitchell (Litigation Administrator of) v. Ontario (2004), 71 O.R. (3d) 571 (Div. Ct.), was concerned with a different statute, I agree with and adopt Swinton J.'s analysis at paras. 28 and 30 as applicable to the present case:
The governing statutes make it clear that the Minister has a wide discretion to make policy decisions with respect to the funding of hospitals. The legislative framework gives the Minister the power to act in the public interest, and in exercising her powers, she must balance a myriad of competing interests. The terms of the legislation make it clear that her duty is to the public as a whole, not to a particular individual.
...
A consideration of the statutory framework makes it clear that the requisite proximity in the relationship between the plaintiffs and the defendant has not been established so as to give rise to a private law duty of care. The overall scheme of the relevant Acts confers a mandate on the Minister of Health to act in the broader public interest and does not create a duty of care to a particular patient.
42 In Eliopoulos, supra, the Court granted a Rule 21.01(1)(b) Motion to strike the Statement of Claim as against Ontario. The subsequent case of Williams v. AG Canada et al (2009), 95 O.R. (3d) 401 (C.A.) is to similar effect. It dealt with Ontario's alleged negligence in failing to prevent the spread of SARS in 2003. The Court followed its earlier decision in Eliopoulos, supra and struck the Statement of Claim as disclosing no reasonable cause of action against Ontario.
43 For all of the above reasons, it is "plain and obvious" that Whiteman's claim of negligence against Ontario cannot possibly succeed. In summary, Ontario is not vicariously liable for any negligence of Dr. Taylor, Ontario is not the local "board of health" which may be held liable in some individual cases and, finally, Ontario's statutory duties in this area are public law duties and do not give rise to a private law duty of care.
44 The Plaintiff's claim of negligence against Toronto raises many of the same problems. Whiteman frames the claim against Toronto, at paras. 6 and 57 of the Statement of Claim, in essentially the same terms as the claim against Ontario. In particular, it is alleged that "Toronto Public Health" is somehow "vicariously liable for the acts of Dr. Taylor". There is simply no basis in fact or law for this claim. Dr. Taylor's connection to the Defendant Toronto is even more remote than his connection to the Defendant Ontario.
45 As to the alternative theory, that Dr. Taylor did test Iamkhong for HIV and did report her HIV positive status, "Toronto Public Health" or the "Toronto Public Health Department" is not the appropriate entity to sue under the regulatory regime. As noted above, it is the "board of health" that can be liable for negligence in some circumstances under the "communicable disease" reporting regime set up in the Health Protection and Promotion Act. The Toronto "board of health" is established, pursuant to s. 46 of the City of Toronto Act 1997 (No. 2), S.O. 1997, c. 26, and it is "deemed to be a board of health established under the Health Protection and Promotion Act". The powers of the City of Toronto council in relation to the board of health, set out in s. 46, are to appoint its members, to appoint and dismiss the "medical officer of health" and to provide employees to the board "including public health nurses". In other words, Toronto appoints the board and seconds staff to it, but the board is otherwise an independent statutory entity. As noted earlier, the board is subject to direction in writing by the provincial Minister of Health.
46 In Williams v. AG Canada et al, supra, the class of plaintiffs who contracted SARS sued various defendants, including all three levels of government, as in the case at bar. On the Rule 21 Motion at first instance, Cullity J. addressed the issue of whether Toronto could be vicariously liable for the alleged negligence of the "medical officer of health" and other employees of the "board of health". After referring to the provisions of the two statutes, already summarized above, Cullity J.'s decision on this point (reported at [2005] O.J. No. 3508 at para. 101) is as follows:
I accept Ms Mendelson's submission that, under those statutes, responsibility for the management of public health rests with local boards of health and the Province and not with the City. The City of Toronto Act established a board of health for Toronto and provided that the board is deemed to be established under the Health Protection and Promotion Act. As such, the board is a corporation without share capital and it is the legal entity that manages public health in Toronto. It is not pleaded that it is a servant of the City and it is the Minister of Health and Long-Term Care who is responsible for ensuring that the board manages public health in accordance with the Health Protection and Promotion Act.
47 I agree with Cullity J. He proceeded to strike the claim against Toronto. On further appeal, the plaintiffs did not challenge that part of Cullity J.'s decision relating to the Defendant Toronto. The appeal only dealt with the Defendant Ontario.
48 Even if Toronto could somehow be held vicariously liable for the alleged negligence of the "board of health", Whiteman's claim encounters many of the same public law versus private law problems discussed in Williams, supra and Eliopoulos, supra in relation to Ontario. As noted above, para. 57(i) to (p) of the Statement of Claim alleges seven particulars of negligence against both Ontario and Toronto such as: breach of "their duty to protect and promote the health of Canadians"; failure to "enforce their regulations, policies and procedures regarding reportable diseases"; failure to "adequately staff, train and operate its divisions"; failure "to amass the necessary human resources to adequately and properly staff a public health department"; and failure to have an "adequate reportable disease information system".
49 Whether alleged against Toronto or against Ontario, these kinds of broad systemic claims relate to public law duties and not private law duties and they inevitably raise questions of policy. As the Court stated in Cooper v. Hobart, supra at para. 38, per McLachlin C.J.C. and Major J.:
It is established that government actors are not liable in negligence for policy decisions, but only operational decisions. The basis of this immunity is that policy is the prerogative of the elected Legislature. It is inappropriate for courts to impose liability for the consequences of a particular policy decision.
Also see: Just v. British Columbia, [1989] 3 S.C.R. 1228.
50 Whiteman is driven to make these broad systemic claims against Toronto and Ontario precisely because there never was any close or proximate relationship between him and these particular Defendants. His dealings were with the federal government and its agents, in the course of Iamkhong's sponsorship application. In the absence of some proximate relationship between Whiteman and the Defendants Ontario and Toronto, his broad policy-based claims cannot possibly ground a negligence action.
51 For all of the above reasons, the negligence claim against Toronto, like the claim against Ontario, has no chance of success. In summary, Toronto is not vicariously liable for any negligence by Dr. Taylor, Toronto is not the local "board of health" which may be held liable in some individual cases and, finally, any broad systemic failures alleged against Toronto in the public health field are not a proper basis for private law duties.
52 In the result, the negligence claims against both Ontario and Toronto are struck on the basis that they disclose no reasonable cause of action.
53 That leaves the various ancillary claims against Ontario and Toronto. In para. 2 of the Statement of Claim, all of the Defendants except for Iamkhong and the Zanzibar Tavern are lumped together. That paragraph claims damages for "negligence, breach of contract, breach of fiduciary duty, vicarious liability, conspiracy, complicity in fraud, and breaches of s. 7 of the Charter". Negligence and vicarious liability have already been dealt with.
54 It is not entirely clear whether the claims in para. 2, other than negligence and vicarious liability, apply to Ontario and Toronto. Counsel for the Plaintiff did not address any of his oral or written argument to these ancillary claims and they are not addressed elsewhere in the pleadings, as against Ontario and Toronto. Assuming these ancillary claims are intended to apply to Ontario and Toronto, they can be dealt with briefly. Nowhere in the Statement of Claim are the elements of breach of contract, breach of fiduciary duty, fraud or conspiracy pleaded, as against Ontario or Toronto, nor are the necessary material facts pleaded. No contractual relationship arises on the facts, no fiduciary relationship arises on the facts and none of the elements of fraud or conspiracy arise. See: Hunter v. Bravener, supra.
55 The Statement of Claim does specifically address the alleged breaches of s. 7 of the Charter at paras. 60-63. In particular, paras. 60 and 61 plead as follows:
60.
The Plaintiff was deprived of his right to life, liberty and security of the person by the actions and inactions of the Defendants Her Majesty the Queen in Right of Canada; The Attorney General of Canada; Immigration Canada; Her Majesty the Queen in Right of Ontario; and Toronto Public Health, when the Plaintiff contracted HIV as a result of the negligence and failures of the Defendant as set out above.
61.
These deprivations of his right to life, liberty and security of the person were not in accordance with the principles of fundamental justice. The actions and inactions of the Defendants Her Majesty the Queen in Right of Canada; The Attorney General of Canada; Immigration Canada; Her Majesty the Queen in Right of Ontario; and Toronto Public Health were contrary to the principles of fundamental justice.
56 It can be seen that the breach of s. 7 of the Charter is said to be "a result of the negligence ... as set out above" and that the same "actions and inactions" already pleaded are relied on. Since it is "plain and obvious" that the negligence claim cannot succeed, as against Ontario and Toronto, a Charter claim that is somehow derivative of that alleged negligence, and dependant on it, cannot succeed. I also note that no "principle of fundamental justice" is identified in the pleadings. Indeed, para.61 is nothing more than a "mere conclusion of law". See: Hunter v. Bravener, supra.
57 For all these reasons, the ancillary claims are also struck as against Ontario and Toronto.
58 In the result, the Rule 21 Motion brought by these two Applicants is granted and the claims against Ontario and Toronto are struck in their entirety.
E. The Claim Against Canada
59 Three separate bases for striking various parts of the claim are raised by the Defendant Canada. First, it is submitted that the main claim of regulatory negligence suffers from the same public law versus private law deficiencies as the claims against Ontario and Toronto. Second, it is submitted that all or some of the claims depend upon collateral attacks on immigration decisions that must be raised first in the Federal Court by way of judicial review. Third, it is submitted that the secondary causes of action pleaded by the Plaintiff Whiteman lack essential facts or elements, as against Canada, in the same way as they do against Ontario and Toronto.
60 I will address each of these submissions in the above order.
(a)
A private law duty of care in immigration matters
61 Whiteman's claim of regulatory negligence against Canada alleges that it is "vicariously liable for the acts of its agents ... and is liable through the acts of its employees". Neither counsel for Whiteman nor counsel for Canada made any argument, either orally or in writing, on the question of whether Canada could be held vicariously liable for the alleged negligence of Dr. Taylor. The Immigration Act, R.S.C. 1985, c. I.2 as amended, was in force at the time Iamkhong was granted Landed Immigrant status on March 28, 2001. The Immigration Act was repealed on June 28, 2002 and the successor statute, I.R.P.A., came into force in stages starting on December 6, 2001.
62 Under s. 11(1) of the Immigration Act, "a medical examination by a medical officer" was mandatory for "every immigrant". Such examinations could also be ordered, pursuant to s. 11(2), for any person "who, in the opinion of an immigration officer ... may be ... inadmissible" under s. 19(1)(a). This latter provision states:
No person shall be granted admission who is ... suffering from any disease ... as a result ... of which, in the opinion of a medical officer concurred in by at least one other medical officer, they are or are likely to be a danger to public health or to public safety or their admission would cause or might reasonably be expected to cause excessive demands on health or social services.
63 The Immigration Act defines a "medical officer" in s. 2(1) as "a qualified medical practitioner authorized or recognized by order of the Minister as a medical officer for the purposes of any or all provisions of this Act". Section 22 of the Immigration Regulations, 1978, S.O.R./78-172 as amended, sets out a mandatory list of eight factors that "shall be considered by a medical officer" when determining the admissibility issue under s. 19(1)(a). Most of these factors are highly relevant to an HIV carrier.
64 The pleadings allege, in substance, that Dr. Taylor was a "medical officer" under the statute and that he carried out his statutory duties under the above scheme in a negligent manner. Furthermore, had he carried out those duties in an appropriate manner, it is unlikely that Iamkhong would have been admitted to Canada as a landed immigrant in 2001 and would not have infected Whiteman with HIV in 2003.
65 As already noted, neither Canada nor Whiteman have raised or addressed the issue as to whether it is "plain and obvious" or "beyond doubt" that Dr. Taylor, in carrying out his statutory duties, was not a "servant of the Crown" for whom the Crown is vicariously liable. See: K.L.B. et al v. British Columbia et al, [2003] 2 S.C.R. 403. In the absence of argument on the point, I leave it open.
66 I suspect the reason why the parties did not address this point is that the pleadings allege that Iamkhong had to go through an interview process and her application would have been directly assessed by officials at Immigration Canada who were undoubtedly "servants of the Crown". Those officials had the power under s. 11(2) to order a "medical examination" and the pleadings allege that HIV testing or questioning should have been ordered in light of "several aspects of Iamkhong's past medical history, employment history and marital history". The exact nature of Iamkhong's "history", that should have made questions about her HIV status "obvious", is not pleaded. However, this is an example of merely imperfect pleadings where "leave to amend should be granted", per Strathy J. in Carney Timber, supra at para.17, citing Lido Industrial Products v. Exbar Properties Inc. (1988), 28 O.A.C. 385 (Div. Ct.). At the criminal trial it was "undisputed or uncontradicted" that "around 1995" Iamkhong had "worked in Hong Kong for a month as a prostitute", in the same year that "she had an HIV test at a clinic in Hong Kong ... Two weeks after her HIV-positive test, [Iamkhong] entered Canada on a work permit to work at the Zanzibar Tavern in Toronto as a dancer". See: R. v. Iamkhong (2009), 250 O.A.C. 220 (C.A.)
67 Whiteman should be granted leave to amend his pleadings in order to add those facts which form the basis for his assertion that it was "obvious", from Iamkhong's "history", that she was at risk of being a carrier of HIV. In this regard, Whiteman also wishes to add facts that were known to Canadian Government officials about the prevalence of HIV amongst "sex trade" workers from South East Asia. He referred the Court to the Immigration Department's own Handbook, in force at the time, which adverts to prostitutes from South East Asia being high risk carriers of HIV. Whiteman should also be granted leave to amend his pleadings in this regard.
68 In these circumstances, the issue of whether Canada can be held vicariously liable for the alleged negligence of Dr. Taylor, as opposed to the alleged negligence of its own departmental officials, recedes in importance. The real issue here is whether the statutory scheme under which Dr. Taylor and the departmental officials were acting, namely, the Immigration Act, which undoubtedly enacts various public law duties in relation to Iamkhong's immigration process, can also give rise to a private law duty of care towards Whiteman.
69 In the SARS case, Williams v. Canada, supra at para.32, Sharpe J.A. struck the claim and distinguished a line of contrary authority on the basis that "those cases involved specific allegations that Crown authorities had direct dealings with the Plaintiff sufficient to give rise to a private law duty of care". One of the leading cases in the contrary line of authority, where there were "direct dealings" between the Plaintiff and the Defendant Crown agency, is Barreau du Quebec v. McCullock-Finney, [2004] 2 S.C.R. 17. In that case, the Plaintiff had made repeated complaints to the Quebec Barreau about the alleged misconduct of a lawyer. The Court stressed that the statutory duties governing the Barreau "are created to protect the public". However, when the Barreau failed to act on the complaints in a timely way, causing harm to the Plaintiff, she sued. Her action against the public regulator was upheld on the following basis, per LeBel J. speaking for the Court (at paras.42 and 46):
The attitude exhibited by the Barreau, in a clearly urgent situation in which a practicing lawyer represented a real danger to the public, was one of such negligence and indifference that it cannot claim ... immunity.
...
As the respondent pointed out, in common law, the Barreau would have been no less liable in the circumstances of this case if the analysis adopted by this Court in Edwards and Cooper [citations omitted] had been applied. The decisions made by the Barreau were operational decisions and were made in a relationship of proximity with a clearly identifiable complainant, where the harm was foreseeable. [emphasis added]
70 Another recent case where the Court imposed a private law duty of care on public officials is Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263. The Toronto police had shot and killed Odhavji who was fleeing from a bank robbery. The S.I.U. (the civilian agency that investigates potential crimes committed by the police in Ontario) investigated the police shooting but the officers failed to cooperate with the investigation, contrary to statutory duties imposed on them by the Police Services Act, R.S.O. 1990, c. P-15. Odhavji's family sued the Chief of Police alleging that he was negligent in failing to enforce these statutory duties and thereby caused psychological harm to the family members. On a Rule 21.01(1)(b) Motion, the Court allowed the action to proceed. Iacobucci J., speaking for the Court, held that the harm to the family was reasonably foreseeable. In finding a proximate relationship between the Police Chief and the family, he stressed three factors (at paras. 55-59): the close causal connection between the alleged negligent supervision and the harm to the family; public expectations that police officers will not breach statutory duties and cause harm; and, finally, the express statutory obligation placed on the Chief of Police to ensure that members of the force comply with the Police Services Act.
71 A few years later, in Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, the Court considered whether a police service owes a private law duty of care to a suspect in a criminal case. The Plaintiff Hill had been wrongly charged with a number of robberies in Hamilton after a "flawed" police investigation. Hill sued the police alleging negligence. The Court, per McLachlin C.J.C. for the majority, set out the now familiar two part test from Cooper and Edwards for determining whether a public agency like the police owes a private law duty of care to particular individuals (at para. 20):
(1)
Does the relationship between the Plaintiff and the Defendant disclose sufficient foreseeability and proximity to establish a prima facie duty of care; and (2) if so, are there any residual policy considerations which ought to negate or limit that duty of care? See: Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as affirmed and explained by this Court in ... Cooper and Edwards. [citations omitted]
72 There is no question that the police duty to investigate crime is a duty owed to the public at large. Nevertheless, in carrying out that public law duty, the majority held that a private law duty of care was owed to the suspect Hill. The Court applied the Anns/Cooper test and found foreseeability of harm, proximity of relationship and insufficient countervailing policy considerations. The Court held at para.33 that the relationship between police officer and suspect is "personal, and is close and direct".
73 In applying the Anns/Cooper test to the case at bar, the critical facts derive from the statutory scheme which gave rise to the "direct dealings" between the parties at the time of the sponsorship application, to adopt the language of Sharpe J.A. in Williams, supra.
74 The statutory scheme on which Whiteman based his sponsorship of Iamkhong involves a number of sections of the Immigration Act. Section 3 of the statute provides that one of its objects is "to facilitate the reunion in Canada of Canadian citizens ... with their close relatives from abroad." In furtherance of this legislative objective, the sponsorship regime is set up under the Immigration Regulations, 1978. Section 5 of the Regulations is titled "Sponsorship of Members of the Family Class" and provides that a Canadian citizen "is authorized to sponsor the application for landing of any member of the family class", which includes "the sponsor's spouse". Section 5(2)(b) requires that the sponsor "gives an undertaking", which is defined in s. 2(1) as:
... an undertaking in writing given to the Minister by a person to provide for the essential needs of the member of the family class and the member's dependants for a period of 10 years and to ensure that the member and the member's dependants are not dependent on any payment of a prescribed nature referred to in Schedule VI.
75 In the case of sponsorship of spouses, s. 5(2)(h) also requires the sponsor to enter into a "written agreement" with the spouse "to provide for the [spouses's] essential needs ... for a period of 10 years". In this "written agreement", the sponsor must also declare "that their financial obligations do not prevent them from honouring their agreement with the [spouse] and their undertaking to the Minister". Section 118(2) of the Immigration Act provides that "payments of a prescribed nature ... that result from a breach of an undertaking ... may be recovered ... in any court of competent jurisdiction as a debt due to Her Majesty". The payments referred to in Schedule VI include "assistance under the General Welfare Assistance Act", R.S.O. 1990, c. G-6, "benefits under the Family Benefits Act", R.S.O. 1990, c. F-2, and payments under the Ontario Disability Support Program Act, S.O. 1997, c. 25, Sch.B. For a more detailed analysis of the statutory scheme for sponsorship of family class immigrants, see: Mavi et al v. Canada et al (2009), 98 O.R. (3d) 1 (C.A.).
76 In this recent decision, Mavi, supra at p.33, the Court of Appeal held that "there is certainly a contractual element to the relationships between the governments and individual sponsors" and that "the relationships also have a significant public law component". In its seminal decision in Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at pp.204-6, the Supreme Court definitively held that concurrent liability in tort and contract can arise in certain relationships. In that regard, the Court stated:
... a common law duty of care may be created by a relationship of proximity that would not have arisen but for a contract.
Also see: BG Checo v. BC Hydro, [1993] 1 S.C.R. 12. Accordingly, the contractual or quasi-contractual relationship between the sponsor Whiteman and Canada is a relevant consideration in determining whether a private law duty of care exists between the parties.
77 As summarized above, Whiteman pleads the essential facts relating to his sponsorship of Iamkhong. The question, at this early stage of the proceedings, is not whether those facts are sufficient to establish a private law duty of care between Canada and Whiteman. Rather, the onus is on Canada to establish that it is "plain and obvious" that no such private law duty of care could be found to exist.
78 The first stage of the Anns/Cooper test requires an assessment of whether "the harm that occurred [was] the reasonably foreseeable consequence of the Defendant's act" and whether there is "a close and direct relationship of proximity or neighbourhood" between the parties. See: Cooper, supra at paras.22, 30 and 31. As to foreseeability, there is at least an arguable case that negligent investigation of an applicant for landed immigrant status, by immigration officials, may cause reasonably foreseeable harm to the sponsor. In particular, failure to carry out medical investigations that should have been "obvious", given the applicant's "history", may result in foreseeable harm such as risk to the health of the sponsor as well as financial liability pursuant to the undertaking to the Minister. In Hill, supra at para.32, McLachlin C.J.C. stated:
In this appeal, we are concerned with the relationship between an investigating police officer and a suspect. The requirement of reasonable foreseeability is clearly made out and poses no barrier to finding a duty of care; clearly negligent police investigation of a suspect may cause harm to a suspect.
The same is at least arguably true, at this early stage of the proceedings, in relation to negligent investigation of an immigration applicant and harm to the sponsor.
79 The further first stage inquiry into proximity involves "looking at expectations, representations, reliance and the property or other interests involved" in order "to evaluate the closeness of the relationship between the Plaintiff and the Defendant". See: Cooper, supra at para.34. Again, it is at least arguable on the facts of this case that the relationship between Whiteman and Canada was sufficiently close to give rise to a duty of care. The statutory scheme establishes a relationship between the sponsor and the Minister that is either contractual or, at the least, is akin to a contractual relationship. The Minister agrees to grant landed status to the sponsor's spouse but only upon the sponsor's "undertaking in writing given to the Minister ... to provide for the essential needs of the [spouse] ... for a period of 10 years and to ensure that the [spouse is] ... not dependent on any payment of a prescribed nature". In this context, Whiteman pleads that Canada "failed to warn the Plaintiff of the health condition of Iamkhong prior to accepting his application for sponsorship", that Canada failed to "make any inquiries about [her HIV-positive status] despite several aspects of Iamkhong's past medical history, employment history and marital history which would make such a question obvious" and that Canada "knew or ought to have known about Iamkhong's HIV positive status and failed to inform the Plaintiff". Assuming Canada's negligence can be made out, in failing to discover Iamkhong's HIV positive status, the contractual or quasi-contractual relationship between Canada and Whiteman is sufficiently close and direct that Canada would know that Whiteman would be directly affected by that negligence, to paraphrase Lord Atkin in Donoghue v. Stevenson, [1932] A.C. 562 at 581 (H.L.).
80 Again, I find the analysis of the majority in Hill, supra at para.33, to be helpful on this issue of proximity. McLachlin C.J.C. stated:
The relationship between the police and a suspect identified for investigation is personal, and is close and direct. We are not concerned with the universe of all potential suspects. The police had identified Hill as a particularized suspect at the relevant time and begun to investigate him. This created a close and direct relationship between the police and Hill. He was no longer merely one person in a pool of potential suspects. He was singled out. The relationship is thus closer than in Cooper and Edwards.
81 By a parity of reasoning, the case at bar is not concerned with the Minister's broad public law duties towards all potential immigrants or in relation to immigration policy. The case is concerned with a particular immigrant who had been singled out, investigated, medically tested in some fashion and then interviewed by the authorities and who was the subject of a significant "undertaking in writing" between the immigrant's sponsor and the Minister. On these facts, it is at least arguable that the relationship between the parties was personal, close and direct.
82 The Odhavji case is also useful, by analogy, in concluding that there is a proximate relationship between the parties for purposes of a Rule 21.01 Motion. As already noted, in Odhavji, supra the Court stressed three factors as the basis for finding sufficient proximity. The same three factors arguably apply in the case at bar, namely: there is a close causal connection between the alleged negligence of the immigration officials and the harm to the Plaintiff; the public would reasonably expect immigration officials to protect the public from the spread of catastrophic illnesses like HIV and AIDS by conducting medical tests of immigrants; and, finally, there is an express and freestanding statutory obligation found in s. 11(1) and s. 19(1)(a) of the Immigration Act and in s. 22 of the Immigration Regulations requiring medical examinations in order to prevent the spread of catastrophic illnesses by immigrants.
83 The second stage of the Anns/Cooper test involves analysis of "residual policy considerations ... that suggest that the duty of care should not be recognized". At this stage, "the distinction between government policy and execution of policy falls to be considered" and factors such as whether "the law already provides a remedy", "the spectre of unlimited liability to an unlimited class" and "the effect of recognizing a duty of care on other legal obligations" all become important. See: Cooper, supra at paras.37-38.
84 The decisions made in relation to Iamkhong's application for landed immigrant status were operational decisions and not policy decisions. See: McCullock-Finney, supra at para.46. There is no other remedy for the harm caused by Canada's alleged negligence other than an action for damages like the present one. See: Odhavji, supra at para.60. As to the spectre of unlimited liability to an unlimited class, the decision in Hill, supra at para.60, is helpful. The Court held:
Recognizing sufficient proximity in the relationship between police and suspect to ground a duty of care does not open the door to indeterminate liability. Particularized suspects represent a limited category of potential claimants. The class of potential claimants is further limited by the requirement that the Plaintiff establish compensable injury caused by a negligent investigation.
Similarly, particular sponsors of immigrants who have entered into written undertakings with the Minister, and who have suffered compensable harm as a result of negligent investigation of the sponsored applicant by immigration authorities, is not a vast or unlimited class of potential Plaintiffs.
85 Finally, concerns about potential conflict between the public duties of immigration officials and a private law duty of care to sponsors like the Plaintiff does not appear to be a realistic concern. A duty to investigate applicants like Iamkhong with care, in order to prevent the spread of diseases like HIV to Canadian sponsors, is entirely consistent with the broad duties of immigration officials to the public at large. In short, there is no conflict of duties on these facts, unlike a case such as Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83.
86 As in Hill, supra, there do not appear to be compelling policy considerations that would negate the prima facie duty of care established at the first stage of the Anns/Cooper test. In any event, it cannot be said that it is "plain and obvious" that the negligence claim against Canada will fail at the second stage of the duty of care analysis. See: Sauer v. Canada (2007), 31 B.L.R. (4th) 20 at paras.63-65 (Ont. C.A.)
87 I should not leave this first submission without noting that counsel for Canada made no attempt to analyse the statutory scheme for medical examinations and for sponsorship applications under the Immigration Act. Furthermore, she made no attempt to apply that statutory scheme, and the facts pleaded, to the various elements of the Anns/Cooper test, as applied by the Supreme Court of Canada in recent cases like Hill, Odhavji and McCullock-Finney. Indeed, this line of "direct dealings" cases was not even cited to the Court or dealt with in any fashion in counsel's Factum. Instead, Canada's sole argument was that authority from the English Courts and from the Federal Court of Appeal had held that "the statutory duties of immigration officials are owed to the public as a whole, and not to individual applicants" and that neither branch of "the Anns test" can be met. On this basis, counsel submitted, "the law is clear that immigration officials owe no private law duty of care to immigrants."
88 Counsel's failure to analyse the statutory scheme and to cite and address the leading Supreme Court of Canada authorities is unfortunate. Furthermore, her reliance on English authority in this area is of limited assistance, given that the English Courts have also held that police investigations do not give rise to a duty of care towards criminal suspects and given that the majority of the Supreme Court of Canada declined to follow this line of related English authority in Hill, supra. In other words, there has been some divergence between English and Canadian authority in this area.
89 When I inquired about the applicability of Hill, during oral argument, counsel handed me a copy of a recent judgment of the Federal Court of Appeal, Khalil v. Canada, 2009 F.C.A. 66, which distinguishes Hill in the context of certain immigration proceedings. This is the leading and most recent Federal Court decision on which counsel for Canada relies heavily. It is a useful decision and it clearly does not support Canada's very broad submission that immigration officials effectively owe no private law duties of care to anyone in any circumstances.
90 It should first be noted that Khalil is an appeal from a judgment at trial of Layden-Stevenson J., as she then was, in Khalil et al v. Canada, 2007 F.C. 923. It is not a pre-trial Motion to strike a Statement of Claim, like the case at bar, on the basis that the claim could not possibly succeed. Indeed, the fact that the case proceeded through a lengthy trial indicates that the parties and/or the Court concluded that the action did have some chance of success. Nothing in the judgments at trial or on appeal indicates the contrary.
91 The action brought by the Plaintiff in Khalil alleged negligence against Canada solely on the basis of delay in processing her application for permanent residence. The Plaintiff is a Convention refugee who came to Canada in 1994 and applied for landed status in 1995. Concerns were raised as to whether she had been a member or supporter of a terrorist organization. Her application was delayed to investigate these matters and it had still not been resolved at the time of her trial or appeal. Layden-Stevenson J. agreed that there had been "unreasonable and inordinate delay" but held that "delay is not a free-standing cause of action". In this particular context, she held that no private law duty of care existed between the Plaintiff and Canada. She also held that causation had not been established. For all these reasons, she dismissed the action. At the time of her decision, released on September 18, 2007, Hill had not yet been decided by the Supreme Court of Canada.
92 On the appeal, Décary J.A. gave the judgment of the Federal Court of Appeal and carefully distinguished Hill, which had by now been released. Décary J.A. stressed the following aspects of Layden-Stevenson J.'s decision:
Relying heavily on Syl Apps Secure Treatment Centre v. B.D, [2007] 3 S.C.R. 83, she held that there would be a conflict between a duty to the appellants, and the Minister's overarching duties to the public under the IRPA. Therefore, the trial judge held that a prima facie duty of care did not arise - even if she were to assume foreseeability for the sake of her analysis, the potential for conflict was a "compelling policy reason" to refuse to find proximity (at paras. 188, 190, 193).
She further held that even if a prima facie duty of care existed, she would have found it to be negated by residual policy considerations at the second stage of the Cooper test (at para. 193). The availability of seeking an order of mandamus to force a decision was considered an adequate alternative remedy (at paras. 194-202), as contemplated by Justice Abella in Syl Apps, supra at para. 28. Justice Layden-Stevenson also expressed concern that if a duty of care was recognized, claimants would be able to appeal to the Federal Court of Appeal as of right, circumventing the requirement in the IRPA that a question of general importance be certified (at para. 203).
Further, the trial judge expressed concern about the costs of litigation in these circumstances. The costs to the parties (or in this case, legal aid), and the strain on judicial resources also favoured that such issues be resolved through administrative law remedies (at para. 205).
Finally, Justice Layden-Stevenson felt that the spectre of indeterminate liability "loomed large" if the proposed duty of care were recognized "solely on the negative impact of delay on an applicant as opposed to actual misconduct on the part of immigration officers" (at para. 207). For all of these reasons, she held that no duty of care arose in the circumstances.
93 Décary J.A. concluded as follows (at paras.18 and 21):
Any harm caused to the appellants by the delay is not in the same range of severity as the harm caused in Hill to the wrongfully convicted. In Hill, the harm included ongoing investigation and criminal prosecution, wrongful conviction and incarceration for twenty months. And in contrast to Hill, the appellants were not left without recourse; they have open to them a remedy that is more expedient, inexpensive and responsive, namely mandamus.
...
When the alleged novel duty of care is grounded on delay on the part of the state, it seems clear to us that the possibility of seeking an order of mandamus is a factor that must be considered at either stage of the examination.
94 In summary, the two Judgments in Khalil hold that a private law duty of care does not arise in the following circumstances established after a full trial:
*
Where the Plaintiff's only relationship with the government is as an applicant for immigrant status;
*
Where the only harm caused by government negligence is delay of the application;
*
Where circumstances such as the prevention of terrorism raise overarching and competing duties to the public that may be inconsistent with a private law duty of care; and
*
Where the alleged harm caused by delay can be completely remedied through judicial review and mandamus, which are simpler, less costly and speedier remedies than an action for negligence.
95 Nothing in the judgments in Khalil suggests that the Federal Court would summarily strike out pleadings, as disclosing no reasonable cause of action, in circumstances like the case at bar:
*
Where the Plaintiff has a contractual or quasi-contractual relationship with the Minister that is based on a written sponsorship "undertaking";
*
Where very serious harm, in the nature of contracting HIV, is alleged to have been caused by government negligence;
*
Where no other remedy exists for that harm other than a negligence action claiming damages;
*
Where the government's overarching duties to the public, namely, to prevent the spread of communicable diseases to Canadians, are entirely consistent with a private law duty of care owed to the Plaintiff.
96 An important point emerges from this comparison between the very different facts of the Khalil case and the case at bar. It is not every decision and every process carried out by immigration officials that will give rise to a private law duty of care. There are a diverse array of decisions and processes within immigration law and they can arise in widely different circumstances. Many of these decisions and processes will not give rise to a private law duty of care. As the Court put it in Cooper, supra at para.35:
The factors which may satisfy the requirement of proximity are diverse and depend on the circumstances of the case. One searches in vain for a single unifying characteristic. [emphasis added]
97 The flaw in the approach taken to the present Motion by Canada is that it effectively seeks to immunize all decisions and processes of immigration officials, in all circumstances, instead of analyzing the particular circumstances of this case in the context of its particular statutory scheme and then applying the Anns/Cooper factors to that specific context.
98 In this regard, counsel for Canada conceded that none of the English or Federal Court cases on this point deal with an allegation by a Plaintiff that a potentially catastrophic illness, like HIV/AIDS, had been caused by the negligence of an immigration official. The claim is therefore novel but, for the reasons set out above, it cannot be said that it has no chance of success.
99 In conclusion, Canada's first submission is rejected and the negligence action ought to be allowed to proceed at this stage.
(b)
The Collateral Attack Argument Concerning the Jurisdiction of the Federal Court
100 Canada's second submission is framed as a challenge to the jurisdiction of the Superior Court of Justice. As such, this part of the Motion is brought pursuant to Rule 21.01(3).
101 Canada's argument as to lack of jurisdiction is based on a line of Federal Court of Appeal authority. See: Grenier v. Canada (2005), 262 D.L.R. (4th) 337 (F.C.A.); Prentice v. Canada (2005), 264 D.L.R. (4th) 742 (F.C.A.); Canada v. Manuge, 2009 F.C.A. 29. The statutory scheme, on which these authorities rest, is ss.17 and 18 of the Federal Courts Act, R.S.C. 1985, c. F.7 as amended. Section 17 provides that the Federal Court and the provincial Superior Courts have concurrent jurisdiction where "the claim is for damages under the Crown Liability and Proceedings Act". Section 18 provides that the Federal Court has exclusive jurisdiction where the remedy sought is "an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or [to] grant declaratory relief, against any federal board, commission or other tribunal".
102 The above cases hold that a litigant cannot use s. 17 proceedings to "indirectly challenge the lawfulness" of an administrative decision "by way of an action for damages" but must use s. 18 and "apply directly to have this decision nullified or invalidated by way of judicial review". The indirect challenge to an administrative decision, through s. 17 proceedings, is said to be a "collateral attack". See: Grenier, supra at paras.31-35. In applying this principle to a particular set of pleadings, "what must be asked is whether" the Plaintiff's claim indirectly "challenges the lawfulness" of some underlying administrative decision because "the unlawfulness of that decision is, in whole or in part, a pre-requisite (sine qua non) to a remedy in damages". See Manuge, supra at para.84 [emphasis of Létourneau J.A.]. The Court in Manuge, supra at para.58, has now helpfully clarified the earlier authorities by stating that an action in damages against the Crown need not necessarily challenge the "lawfulness" of the Crown's underlying decision:
It is possible that a perfectly lawful administrative decision or activity may be carried out in a negligent or abusive manner, thus giving rise to liability on the part of the federal administration. In other words, even though a decision or an activity is lawful, its execution may be negligent or wrongful. In such a case, bringing an action in liability based not on the lawfulness of the decision or activity, but on its negligent performance, is appropriate. [emphasis added]
103 Counsel for Canada submits that the rule against "collateral attack", as enunciated in Grenier and Manuge, not only precludes the narrow immigration law remedies sought by the Plaintiff but also precludes his central claim for damages due to regulatory negligence. Canada submits that the Plaintiff must first seek judicial review in the Federal Court, pursuant to s. 18, to set aside the underlying immigration law decisions relating to Iamkhong and, if successful, he can then commence the present law suit in this Court, pursuant to s. 17. In other words, successful judicial review of the various immigration decisions at issue in this case is said to be a condition precedent to any tort action claiming damages.
104 Canada's submission that the Plaintiff's action for regulatory negligence is somehow barred by s. 18 of the Federal Court Act is without merit. As Létourneau J.A. made clear in Manuge, supra, in the passage quoted above, it is perfectly appropriate to commence an action against the Crown that does not impugn the "lawfulness" of an administrative decision but claims that the decision was made in "a negligent manner" and that it caused harm to the Plaintiff. Such an action does not engage s. 18 of the Federal Court Act and, therefore, does not trench on the exclusive jurisdiction of the Federal Court. As Borins J.A. explained in TeleZone Inc., supra at para.95, giving the judgment of the Ontario Court of Appeal:
It is plain on its face that s. 18 does not constitute a bar, or a condition precedent, to the jurisdiction of the Superior Court over a claim for damages in contract or in tort against the Crown. Causes of action in contract or tort are distinct from the prerogative writs and extraordinary remedies described in s. 18. Shortly put, relief by way of damages is not a form of relief contemplated by s. 18.
105 The Ontario Court of Appeal's decision in TeleZone Inc., supra casts doubt on the correctness of the Grenier/Manuge line of authority from the Federal Court of Appeal. That issue will be resolved by the Supreme Court of Canada as a further appeal of the four TeleZone cases was argued in that Court on January 21 and 22, 2010. Judgment was reserved. However, for purposes of the present Motion, it is unnecessary to resolve the divergence between the two Courts. Applying the test set out by Létourneau J.A. in Manuge, supra at para.84, "the unlawfulness" of the various immigration decisions is not, "in whole or in part, a pre-requisite (sine qua non) to a remedy in damages". It is open to the Plaintiff, on his present pleadings, to argue that the immigration authorities acted within their lawful jurisdiction, albeit negligently, and were deceived by Iamkhong about her HIV-positive status. There is nothing in this position that impugns the "lawfulness" of the immigration decisions, in an administrative law sense, or that engages the remedy of judicial review pursuant to s. 18 of the Federal Court Act.
106 However, the Plaintiff also seeks a number of narrow immigration law remedies, in addition to his central claim of regulatory negligence and damages. These subsidiary claims are more troublesome in terms of Canada's jurisdictional argument and the application of the principle in Grenier/Manuge. In TeleZone, supra at paras.91, 94, 111 and 112, Borins J.A. repeatedly stressed that:
In none of the four cases did the Plaintiff seek to set aside the underlying administrative decision ... In none of the cases is a remedy sought that comes within the prerogative writs or extraordinary remedies of s. 18 ... It is also noteworthy that in none of the cases did the Plaintiff participate in the decision-making process of the administrative decision. Therefore, in none of the four cases was there a collateral attack on an administrative decision ... TeleZone does not attack, nor seek to set aside, the decision to issue the licenses.
107 By contrast, Whiteman seeks a number of subsidiary remedies that arguably do trench on the exclusive administrative law jurisdiction of the Federal Court. In particular, paras.2(c), (d), (e) and (f) of the Statement of Claim seek four declarations of invalidity concerning the Plaintiff's "sponsorship agreement" and "sponsorship support undertaking" and paras.2(h) and (i) seek a "Removal Order pursuant to I.R.P.A. requiring Iamkhong to leave Canada" and "an Order requiring an Admissibility Hearing pursuant to I.R.P.A. ... with respect to the Defendant Iamkhong's continued admissibility in Canada". These latter two orders are in the nature of mandamus.
108 I am satisfied that the above six sub-paragraphs all seek remedies that fall squarely within the exclusive jurisdiction of the Federal Court, pursuant to s. 18 of the Federal Court Act. Accordingly, they should all be stayed or dismissed pursuant to Rule 21.01(3) on the basis that this Court has no jurisdiction.
109 I am not satisfied that the declaration sought in para.2(g) of the Statement of Claim is similarly beyond the jurisdiction of this Court. That paragraph is as follows:
2.(g). A Declaration that any monies paid to the Defendant Iamkhong in social assistance and/or social services are not a debt owing by the sponsor namely the Plaintiff and a Declaration that the sponsor namely the Plaintiff has no liability to reimburse said monies.
110 One of Whiteman's central claims against Iamkhong is that she obtained his sponsorship by fraud, that is, by deliberately deceiving him about her HIV status. Iamkhong's criminal convictions suggest that this claim has substantial merit. In addition, Whiteman pleads that Canada's negligence assisted Iamkhong in successfully carrying out the fraud. In this regard, paras.56(m), (n) and (o) of the Statement of Claim assert the following:
56.
...
(m)
Immigration Canada knew or ought to have known about Iamkhong's HIV positive status and failed to inform the Plaintiff;
(n)
Immigration Canada through its actions aided Iamkhong in deceiving the Plaintiff about her health condition and in doing so place [sic] the Plaintiff at risk of infection;
(o)
Immigration Canada knew or ought to have known that Iamkhong had not disclosed her HIV status to the Plaintiff and did nothing about it thereby assisting and aiding Iamkhong in her conspiracy to defraud the Plaintiff.
111 Assuming Whiteman can make out the fraud by Iamkhong, and can make out the fact that Canada's negligence assisted Iamkhong in perpetrating the fraud, it is not "plain and obvious" that the remedy sought in para.2(g) would be unavailable. Nor would such a remedy trench on the exclusive administrative law jurisdiction of the Federal Court. The declaration sought in para.2(g) is not to the effect that Whiteman's sponsorship of Iamkhong, or his undertaking to the Minister, were unlawful or lacking in jurisdiction or should be set aside on grounds of invalidity. Rather the declaration sought is to the effect that, upon findings of fraud and negligence, it would be unreasonable and unjust to enforce whatever debts Whiteman owes the Crown to pay for Iamkhong's treatment and/or support, as a result of her undisclosed medical condition. This declaration is properly ancillary to the damages claims for fraud and negligence and should not be struck. I note that it could also be an "appropriate and just" remedy pursuant to s. 24(1) of the Charter.
112 In conclusion, Canada's second submission, concerning the jurisdiction of this Court, is allowed in part by staying the six sub-paragraphs of the Statement of Claim that seek remedies exclusively within the jurisdiction of the Federal Court (paras.2(c), (d), (e), (f), (h) and (i)) Otherwise, this submission is without merit.
113 I cannot leave this part of the argument without making one final observation. Canada's broad argument, based on a misapplication of Manuge, is to the effect that the tort action in the case at bar cannot proceed without first bringing judicial review in the Federal Court to set aside various underlying immigration law decisions. As Borins J.A. noted in TeleZone, supra at para.100:
The procedure that it advocates would take litigants back to the days of Bleak House where they had to go from court to court until they were finally able to obtain their remedy ... In particular, the Crown's position ... would require split or multiple proceedings in different forums, waste scarce judicial resources [and] impose huge additional costs on plaintiffs ...
114 It is perhaps surprising that the Crown's argument in favour of this complex, costly and slow two-step procedure has recently raised its head in civil proceedings when it was flatly rejected twenty-five years ago in the context of criminal proceedings.
115 In the early days of the Charter of Rights and Freedoms, when counsel began to bring s. 8 Motions at trial challenging wiretap authorizations and search warrants and seeking exclusion of the fruits of these searches, some Crown counsel argued that the s. 8 Motions were "collateral attacks". The argument initially met with some success and some courts held that criminal litigants had to first bring certiorari to quash a search warrant or, in the case of wiretaps which issue from Superior Courts, had to return to the issuing court and seek to have the authorization declared invalid and set aside. Only then could the litigant proceed separately before the trial court and seek the remedy of exclusion of evidence. See, e.g., R. v. Komadowski (1986), 27 C.C.C. (3d) 319 (Man. C.A.); R. v. Wilson (1983), 9 C.C.C. (3d) 97 (S.C.C.).
116 These early decisions came in for heavy criticism, much of it similar to Borins J.A.'s recent statements in TeleZone, supra. For example, in Re Zevallos and the Queen (1987), 37 C.C.C. (3d) 79, a strong panel of the Ontario Court of Appeal (Howland, C.J.O., Dubin and Morden JJ.A., as they then were) held that Komadowski was not to be followed in Ontario. Speaking for the Court, Morden J.A. stated (at p.84 C.C.C.) that "the pre-trial quashing of the search warrant by reason of its invalidity is, in a sense, an idle exercise" that causes "duplication in the adducing and consideration of the evidence". The Court held that it was appropriate for a trial court to determine the lawfulness of a search warrant, as a necessary incident to deciding the admissibility of the evidence seized, without any prior application to quash the search warrant by way of certiorari.
117 In the wiretap context, Wilson, supra was a binding decision of the Supreme Court of Canada and so it was more difficult to criticize. It is still cited today, in TeleZone for example, as the leading authority on the rule against "collateral attacks". Nevertheless, the two step procedure for attacking a wiretap authorization, required by the majority judgment in Wilson, is no longer the law.
118 Wilson, supra was a decision of a five member panel of the Court and it was a badly divided Court. McIntyre J. gave the judgment of a three member majority and Dickson J., as he then was, wrote a powerful dissent for the other two members of the panel. Dickson J. held that a trial judge can determine the lawfulness of a wiretap authorization in the context of deciding the admissibility of the evidence (at p. 106 C.C.C.):
When a trial judge rules evidence inadmissible because the authorization, although valid on its face, was not lawfully obtained, it can scarcely be said that he is not going behind the authorization. He is not necessarily declaring the authorization invalid for all purposes, he is not actually setting it aside, but he is, for the purpose of determining the admissibility of evidence, going behind the authorization. [emphasis added]
Dickson J. did not dispute the rule against "collateral attacks". He simply held that the trial judge's undoubted jurisdiction to determine the admissibility of evidence required that he/she inquire into the lawfulness of the underlying wiretap authorization.
119 Dickson J.'s dissent in Wilson was the simpler, less costly and more expedient procedure and the two step process required by McIntyre J.'s majority judgment caused delays, additional costs and undue complexity. In R. v. Garofoli (1988), 41 C.C.C. (3d) 97 (Ont. C.A.), Finlayson J.A., in a concurring judgment, called for an end to the two step Wilson procedure. He referred to the Court of Appeal's decision in Zevallos, supra and stated (at p.156 C.C.C.):
It is clearly in the interests of the administration of justice that there not be unnecessary duplication of judicial supervision with the possibility of conflicting decisions.
120 On further appeal to the Supreme Court of Canada, a seven member panel of the Court held that the procedure required by the majority judgment in Wilson was no longer to be followed. Sopinka J., with Dickson C.J.C. concurring, gave the majority judgment in R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.). He described the "current state of the law" as a "procedural quagmire" and he essentially adopted Dickson J.'s dissenting position in Wilson (at pp. 182-7 C.C.C.). Sopinka J. stated (at p. 185 C.C.C.):
An objection to the reception of evidence is very much a necessary incident of the trial process. A trial judge before whom wiretap evidence is tendered is obliged to rule on an objection based on an alleged breach of the accused's constitutional rights. He or she has jurisdiction and it cannot be declined.
121 Garofoli put an end to the procedure in Wilson and to the Crown's argument about "collateral attacks" on search warrants and wiretap authorizations. The trial judge's jurisdiction to rule on the admissibility of evidence necessarily gave that court jurisdiction to consider the validity or lawfulness of an underlying search warrant or wiretap authorization, without violating the rule against "collateral attacks".
122 By a parity of reasoning, a judge of this Court has jurisdiction at trial to determine alleged regulatory negligence by the Crown in some immigration matters where the Anns/Cooper test can be met. In deciding whether the immigration officials were negligent, the trial judge may have to inquire into the validity or lawfulness of the underlying immigration decisions. To paraphrase Dickson J. in Wilson, the trial judge is not necessarily declaring the immigration decision invalid for all purposes, and is not actually setting it aside but is, for the purpose of determining the alleged negligence, going behind the immigration decision.
123 This kind of overlapping jurisdiction, between two Courts dealing with two different matters and two different remedies but with similar facts, is no longer regarded as a "collateral attack" in criminal procedure and it ought not to be so regarded in civil procedure.
(c)
The Argument Concerning the Plaintiff's Subsidiary Causes of Action
124 Canada's third submission essentially adopts the positions advanced by Ontario and Toronto concerning the additional or subsidiary causes of action pleaded by Whiteman, namely, that they all fail to allege essential facts and elements.
125 In addition to regulatory negligence, Whiteman pleads breach of contract, breach of fiduciary duty, conspiracy, fraud and breach of s. 7 of the Charter as against Canada. No submission was made by Canada, either orally or in writing, seeking to strike the allegation of breach of contract and Whiteman has particularized the facts and elements of this claim. Accordingly, the action for breach of contract can proceed at this stage, together with the action for regulatory negligence.
126 Canada submits that the three claims alleging fraud, conspiracy and breach of fiduciary duty all lack essential facts and elements. I agree. There is nothing in the facts pleaded that could amount to the deliberate dishonesty or deceit that constitutes the tort of fraud. Similarly, nothing in the facts pleaded supports the allegation of a conspiracy between Canada and some other party, presumably Iamkhong. It is pleaded that Canada's negligence had the effect of assisting Iamkhong's fraud but that is not the same thing as an agreement or conspiracy to commit fraud or some other tort. Finally, no facts are pleaded that could establish a fiduciary relationship between Whiteman and Canada. In short, all three of these claims assert "mere conclusions of law", unsupported by any facts. See: Hunter v. Bravener, supra; Wareham v. Ontario, [2008] O.J. No. 166 at paras.36-7; H.A. Imports of Canada Ltd. v. General Mills Inc. (1983), 42 O.R. (2d) 645 (H.C.J.); Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 at paras.39-41 (S.C.J.).
127 Whiteman's final claim is that Canada breached his s. 7 Charter rights. This allegation has already been summarized above, where paras.60 and 61 of the Statement of Claim are set out. Although this claim was struck, as against Ontario and Toronto, the difference here is that an arguable claim of negligence has been pleaded against Canada. Whiteman then builds on this by pleading in para.60 that contracting HIV, as a result of the negligence of Canada, deprived him of his s. 7 interest in "life, liberty and security of the person". I am not prepared to say that the Crown's negligence in causing Whiteman to contract HIV, assuming that can be established, would not violate his "security of the person". Such a conclusion is certainly not "clear and obvious", at this stage, given the definition of "security of the person" found in the leading authorities. See: R. v. Morgenthaler, [1988] 1 S.C.R. 30; Rodriguez v. B.C., [1993] 3 S.C.R. 519; New Brunswick v. G. (J.), [1999] 3 S.C.R. 46; Blencoe v. B.C., [2000] 2 S.C.R. 307.
128 The greater difficulty is caused by Whiteman's failure, in para.61, to particularize which "principle of fundamental justice" has been violated. That term has a clear meaning in the case law and Whiteman has not set out any basis in para.61 for bringing his claim within it. See, e.g., Rodriguez v. B.C., supra; R. v. Malmo-Levine (2003), 179 C.C.C. (3d) 417 (S.C.C.). The paragraph, as presently pleaded, is a "mere conclusion of law".
129 In the course of oral argument, counsel for Whiteman asserted a plausible basis on which a breach of "fundamental justice" might be advanced. I am satisfied that para.61 of the Statement of Claim is another example of imperfect pleading where the Plaintiff should be granted leave to amend and to correct its present deficiency. Otherwise, the claim of a breach of s. 7 of the Charter ought to be struck.
130 In conclusion, Canada's third submission is partially successful. That part of Whiteman's action alleging fraud, conspiracy and breach of fiduciary duty is struck, pursuant to Rule 21.01(1)(b), on the basis that these three claims fail to plead essential elements and facts.
131 The Plaintiff's claim of breach of his s. 7 Charter rights is struck, on the same basis, but with leave to amend in order to correct the current deficiency in para.61 concerning the "principles of fundamental justice".
F. Conclusion and Costs
132 The result of the Motion is mixed. All four Moving Parties argued in their Factum, some of them forcefully, that the claim should be struck on the basis of the limitation period issue. Whiteman devoted a significant effort, in his responding materials, to answering this submission. On the hearing of the Motion, Ontario, Toronto and Canada virtually abandoned this argument and it was, in any event, unsuccessful. In this regard, Whiteman achieved some real success on the Motion against all of the Applicants.
133 On the other hand, Ontario and Toronto were completely successful in striking the entire Statement of Claim on the basis that it disclosed no reasonable cause of action against them. Canada was not as successful but still achieved some real success in striking parts of the claim and in staying some of the remedies sought by Whiteman.
134 The only party to achieve no success was Iamkhong. Her argument was very brief and essentially supported submissions on the limitations issue made by the other three Moving Parties. She did not file a Factum. She is presently incarcerated, serving a sentence in relation to the criminal aspects of this matter.
135 In all these circumstances, I am inclined to the view that the parties should bear their own costs and that no costs of this Motion should be awarded in favour of any party. If any party disagrees with this preliminary view, and cannot reach agreement with the opposing party, they can file brief written submissions as to costs within twenty days.
136 In the result, the Statement of Claim is struck in its entirety as against Ontario and Toronto. As against Canada, those parts of the claim alleging fraud, conspiracy and breach of fiduciary duty are struck and the part of the claim alleging breach of s. 7 of the Charter is struck but with leave to amend. In addition, the six remedies sought against Canada in paras.2(c), (d), (e), (f), (h) and (i) are stayed due to lack of jurisdiction.
137 The rest of the claim can proceed. The Plaintiff has thirty days from the date of this Judgment to file those amendments to the Statement of Claim referred to in this Judgment. The Defendants have sixty days from the date of this Judgment to file their Statements of Defence.
M.A. CODE J.
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