Whiteman v. Iamkhong
RE: Percy Wilbert Whiteman, Plaintiff, and
Suwalee Iamkhong a.k.a. Ricky Iamkhong, the Attorney General
of Canada, Dr. Martin Taylor and Zanzibar Tavern Inc.,
Defendants
Suwalee Iamkhong a.k.a. Ricky Iamkhong, the Attorney General
of Canada, Dr. Martin Taylor and Zanzibar Tavern Inc.,
Defendants
[2013] O.J. No. 5059
2013 ONSC 2175
Court File No. 08-CV-151761 PD3
Ontario Superior Court of Justice
C.J. Brown J.
Heard: January 31, February 1, 2012; March 21, 2013.
Judgment: October 30, 2013.
Court File No. 08-CV-151761 PD3
Ontario Superior Court of Justice
C.J. Brown J.
Heard: January 31, February 1, 2012; March 21, 2013.
Judgment: October 30, 2013.
(151 paras.)
ENDORSEMENT
C.J. BROWN J.:--
Overview
of the Action
Suwalee
Iamkhong, a.k.a. Ricky Iamkhong
1 This action is brought by Percy Wilbert Whiteman
("Mr. Whiteman") who alleges that his former sexual partner and wife,
the defendant, Suwalee Iamkhong, a.k.a. Ricky Iamkhong ("Ms.
Iamkhong"), knowingly infected him with the Human Immunodeficiency Virus
("HIV") sometime in 2003. He further claims intentional infliction of
emotional distress. The plaintiff alleges that Ms. Iamkhong was aware, when she
came to Canada in 1995, that she had HIV. He further alleges that she failed to
disclose her HIV status to him in an intentional fraud which she orchestrated
in order to secure immigration sponsorship into Canada by marriage with the
plaintiff. As against the other defendants, the plaintiff claims that they
failed to take appropriate steps to prevent Ms. Iamkhong from committing an
intentional tort, and that they committed fraud.
The Attorney
General of Canada
2 The plaintiff incorrectly named Her Majesty the
Queen in Right of Canada, which should have been the Attorney General of Canada
("the AG of Canada" or "the Crown"). The plaintiff alleges
that the AG of Canada knew or ought to have known that Ms. Iamkhong was
HIV-positive; negligently and/or intentionally failed to warn the plaintiff of
the health condition of Ms. Iamkhong prior to accepting his application for
sponsorship of her; negligently and/or intentionally allowed the plaintiff to
enter into a sponsorship contract without full disclosure and without providing
consideration in exchange for the sponsorship undertaking; and was negligently
and/or willfully blind to Ms. Iamkhong's perpetration of her fraud and later
covered up its negligence and knowledge. The plaintiff also alleges that the AG
of Canada is vicariously liable for the actions of Dr. Taylor, as its
"agent". The plaintiff further alleges that the AG of Canada breached
his rights under s. 7 of the Canadian Charter of Rights and Freedoms by
allowing Ms. Iamkhong to enter Canada on a work permit, by renewing her work
permit and by approving her for permanent residency status without following
the practices, protocols and procedures of testing would-be immigrants at high
risk for contracting, carrying and transmitting HIV including, but not limited
to, administering an HIV test. The plaintiff alleges that Thailand, from which
Ms. Iamkhong immigrated was, at the material time, known to have significant
heterosexual HIV transmission.
Dr. Martin
Taylor
3 As against Dr. Martin Taylor ("Dr.
Taylor"), the plaintiff alleges that he knew or ought to have known that
Ms. 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 Ms. Iamkhong's HIV-positive
status to her family physician and/or the appropriate government health
agencies so that they could monitor Ms. Iamkhong and contact/protect her sexual
partners, including the plaintiff; negligently and/or intentionally failed to
comply with the Health Protection and Promotion Act, R.S.O. 1990, ch. 7;
negligently and/or intentionally failed to take steps to protect the public,
including the plaintiff, from the spread of HIV, and later covered up their
negligence and knowledge.
Zanzibar
Tavern
4 As against Zanzibar Tavern
("Zanzibar"), the plaintiff claims that it is vicariously liable for
the actions of its employee, its part in endangering the public, including the
plaintiff and its other employees, by allowing Ms. Iamkhong to work as an
exotic dancer without imposing restrictions on her with respect to the goal of
protecting and guarding against the spread of HIV; for its willful blindness to
the fact that its employee, Ms. Iamkhong, was willfully and/or negligently
putting the public and her co-workers at risk when she was engaging in
particular aspects of her employment, and for its willful blindness to the fact
that Ms. Iamkhong was HIV-positive and was not disclosing her status to the
Immigration Officials or the appropriate government health agencies. Based on
Ms. Iamkhong's testimony at her criminal trial, the plaintiff claims that
Zanzibar, through its employee, Wally Waterman ("Mr. Waterman"), had
accompanied Ms. Iamkhong for her immigration medical examination for purposes
of her work permit, that he spoke with the doctor and then advised her that she
was not HIV-positive and, thereafter, she felt that it was safe to have
unprotected sex with the plaintiff.
The
Motion
5 It is extremely unfortunate, indeed tragic, that
Mr. Whiteman contracted HIV from his wife, the defendant, Ms. Iamkhong, an
exotic dancer at the defendant, Zanzibar Tavern, and an immigrant from
Thailand, who he sponsored for permanent residency in Canada. The question to
be determined is whether any of the parties named as defendants in his claim
are or could be liable.
6 Ms. Iamkhong is no longer in Canada, having been
convicted of assault causing bodily harm for transmitting HIV to Mr. Whiteman without
advising him that she had tested positive for HIV in Thailand. As a result of
the conviction, she was deported.
7 While Ms. Iamkhong was found criminally
responsible for Mr. Whiteman's present HIV status, the issues to be determined
in this action are whether any or all of the other defendants could be held
responsible for Mr. Whiteman's contraction of HIV.
8 The defendants, Dr. Taylor, the AG of Canada,
and Zanzibar Tavern bring this motion for summary judgment pursuant to Rule 20
of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground
that the plaintiff's claims have no chance of success and that there is no
genuine issue requiring a trial.
The
Parties
Percy
Whiteman
9 Mr. Whiteman was, at all material times, a
resident of Toronto, Ontario. He was a regular customer of Zanzibar Tavern. It
was at Zanzibar, in 1996, that he met the defendant, Ms. Iamkhong. He began to
date her in 1996 and married her on June 21, 1997. In 1999, Ms. Iamkhong
applied to immigrate to Canada as a member of the family class. The plaintiff
acted as her sponsor, in order that Ms. Iamkhong could gain landed immigrant
status in Canada, and to that end, entered into a sponsorship agreement with
Citizenship and Immigration Canada ("CIC"). In her application for
permanent residence, Ms. Iamkhong declared that she did not have any serious
diseases. Ms. Iamkhong never told the plaintiff that she had been diagnosed
with HIV in Hong Kong, prior to coming to Canada in 1995. She never told him
that her previous husband had died of HIV, or that, in addition to being an
exotic dancer, she had been a prostitute prior to coming to Canada. It was not
until Ms. Iamkhong became seriously ill in March of 2004 and was diagnosed with
HIV that she disclosed to Mr. Whiteman for the first time her previous
diagnosis of HIV in Hong Kong. At the criminal trial in 2006, she testified
that she had attended a private medical laboratory in Hong Kong due to the fact
that she had worked as a prostitute for a short time in Hong Kong. After Mr.
Whiteman was first advised by his wife that she had previously been diagnosed
as HIV-positive, in March of 2004, he was tested and found also to be
HIV-positive.
Dr. Taylor
10 Following Ms. Iamkhong's entry into Canada on a
work permit sponsored by Zanzibar in 1995 and her marriage to the plaintiff in
June of 1997, the plaintiff sponsored Ms. Iamkhong for permanent residency
status in 1999. She had, at that time, been in Canada for four years, had been
in a relationship with the plaintiff for three years, and had been married to
the plaintiff for two years. With respect to the sponsorship, Dr. Taylor
conducted the requisite Immigration Medical Examination ("IME") of
Ms. Iamkhong. Dr. Taylor was a family practitioner who was also a Designated
Medical Practitioner ("DMP") with CIC. As a DMP, he was required to
perform certain medical tests and had discretion with respect to other tests.
Ms. Iamkhong was not a patient of Dr. Taylor and Dr. Taylor had no involvement
with Ms. Iamkhong other than the IME, conducted in March of 1999.
11 Dr. Taylor submits that the plaintiff's claim
against him has no chance of success at trial for the following three reasons.
Firstly, he alleges that the claim is statute-barred by the Limitations Act,
2002, S.O. 2002, c. 24, Sched. B. He alleges that the plaintiff
commenced this claim on March 31, 2008, over four years after he discovered or
ought to have discovered his claim against Dr. Taylor, given that he was
advised, by late March of 2004, that he had been infected, likely from Ms.
Iamkhong, who he had reported to the police. Further, he was advised in March
of 2004 that Ms. Iamkhong had tested positive for HIV in Hong Kong prior to
coming to Canada in 1995, and that Ms. Iamkhong had undergone a medical
assessment for immigration purposes in 1999 and no issues were raised at that
time. Secondly, Dr. Taylor submits that the plaintiff cannot establish a claim
in negligence as against him because he did not owe any duty of care to the
plaintiff and did not have a duty to prevent an intentional tort by Ms.
Iamkhong. Dr. Taylor submits that he had never met Mr. Whiteman, nor provided
him with any care or treatment. He claims he had only seen Ms. Iamkhong on one
occasion for an IME, which is not sufficient to establish a general duty of
care to the plaintiff, and certainly not a duty to prevent an intentional tort
by Ms. Iamkhong. Thirdly, Dr. Taylor submits that even if a duty of care were
owed to the plaintiff, there is no genuine issue requiring a trial, as there is
no evidence to establish that Dr. Taylor did not meet the standard of care
expected of him as a DMP when he conducted the IME of Ms. Iamkhong. He submits
that HIV testing was not mandatory for DMPs conducting IMEs at the material
time.
The AG of
Canada
12 At the material time, in order to become a
landed immigrant in Canada, immigrants such as Ms. Iamkhong were required to be
sponsored. As noted, Mr. Whiteman sponsored his wife, Ms. Iamkhong, and was
required to provide a ten-year undertaking for indemnification for any social
services Ms. Iamkhong might cost Canada in that time period. As part of the
permanent residence application, the immigration laws required that Ms.
Iamkhong obtain a medical clearance with a medical practitioner designated as a
DMP. She was provided with a list of DMPs in her area, from which she chose Dr.
Taylor. These examinations are required, pursuant to the Immigration Act,
R.S.C. 1985, c. I-2 and the 1978 Immigration Regulations and, since June
28, 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27
and the Immigration and Refugee Protection Regulations, SOR/2002-227
(referred to collectively as "IRPA"). The examinations are
required mainly for potential immigrants coming to Canada on a permanent basis
and, in some circumstances prescribed by the Regulations, for those wishing to
immigrate on a temporary basis. At the material time, pursuant to the legislation,
potential immigrants were inadmissible on health grounds if their health
condition was likely to be a danger to public health or safety, or if it might
reasonably be expected to cause excessive demand on health or social services.
At the material time, mandatory screening for HIV was not required for visitors
or workers seeking to reside in Canada six months or more or for persons
applying for permanent residency status. HIV testing for immigrants to Canada
did not become mandatory until 2002.
13 The Crown submits that the plaintiff's action
against it cannot succeed. It argues that the action is statute-barred, as it
was commenced four years after Mr. Whiteman discovered that he was HIV-positive
and four years after Ms. Iamkhong was criminally charged.
14 Further, the Crown submits that the plaintiff's
action must fail as there is no private law duty of care owed by the federal
government to individual citizens to protect them from the personal risks they
undertake with respect to their sexual conduct, including transmission of HIV,
or from the criminal conduct of their partners. The Crown argues that serious
policy concerns militate against shifting the risk to taxpayers, particularly
where the plaintiff is best placed to guard against the risk. With respect to
the claim of vicarious liability, the Crown submits that Dr. Taylor was not an
agent of the Crown, but was an independent DMP, approved for conducting IMEs,
and selected independently by Ms. Iamkhong from a list of independent DMP doctors
in her area.
Zanzibar
Tavern
15 Zanzibar Tavern is an adult nightclub located on
Yonge Street in Toronto, Ontario. Zanzibar initially sponsored Ms. Iamkhong to
come to Canada to work as an exotic dancer in 1995.
16 Zanzibar submits that it owes no legal duty to
Mr. Whiteman arising from the allegations contained in the Statement of Claim.
It submits, based on the law and all of the evidence before this Court, that
there is no genuine issue requiring a trial. It submits, based on the findings
at the criminal trial, that the allegations that Zanzibar's Manager, Mr.
Waterman, communicated to Ms. Iamkhong, either negligently or fraudulently,
that she was not HIV-positive are untenable. It argues that, based on all of
the evidence at the criminal trial, Ducharme J. found that Ms. Iamkhong clearly
understood that she had previously tested positive for HIV in Hong Kong and
that she consciously withheld information regarding that diagnosis from both
the medical professionals she dealt with in Canada and also from Mr. Whiteman.
Further, Ducharme J. rejected her evidence that she mistakenly believed, based
on what she had been told by Mr. Waterman, that she had not tested positive for
HIV. The decision was upheld on appeal to the Court of Appeal.
The
Facts
17 Ms. Iamkhong immigrated to Canada on a work
permit sponsored by Zanzibar on May 6, 1995. She was issued a four-month work
permit, valid until September 5, 1995, to work at Zanzibar. As her permit was
for less than six months, she was not required, as a condition of entry, to
undergo an IME prior to entering Canada. Upon seeking an extension of her visa,
Ms. Iamkhong was required to undergo an IME, which was conducted in October of
1995. No records of that IME exist, as such records are destroyed after two
years if the applicant is medically cleared. Based on the fact that she was
screened as "medically cleared", the evidence would suggest that she
failed to disclose any health problem. In her applications for work permit
extensions, she denied that she "suffered from any serious mental or
physical illness". As well, under cross-examination, the plaintiff
conceded that there was no evidence that the Crown was aware that Ms. Iamkhong
had worked as a prostitute, and further conceded that there was nothing inherently
high risk about being an exotic dancer.
18 The plaintiff's evidence on cross-examination
was that he met Ms. Iamkhong at Zanzibar in 1996, they became sexually active
in November or December 1996, and on June 21, 1997, they were married.
19 As outlined above, Ms. Iamkhong applied to
immigrate to Canada as a member of the family class in 1999. The plaintiff
submitted an undertaking of support as her sponsor. In her application for
permanent residence, she declared that she did not have any serious disease. As
part of her application for landed immigrant status, she was required to
undergo a second IME, which was conducted on March 17, 1999. She was provided
with a list of DMPs in her area, and selected the defendant, Dr. Taylor. As
with the IME conducted in 1995, the actual paperwork and records were
subsequently destroyed.
20 On February 28, 2004, Ms. Iamkhong was admitted
to the hospital with advanced stage meningitis and on March 1, 2004, she
advised the plaintiff that she was HIV-positive.
21 The plaintiff underwent an HIV test on March 4,
2004 and received an HIV-positive result on March 23, 2004. On March 24, 2004,
he went to the police to advise them that he suspected that he was infected by
Ms. Iamkhong and wanted the police to investigate and lay criminal charges.
Following investigation of the plaintiff's complaint, on May 1, 2004, Ms.
Iamkhong was charged by the Toronto Police Service with criminal negligence and
aggravated assault.
22 A preliminary inquiry took place on December 21,
2005. The criminal trial took place in October and November 2006: R. v.
Iamkhong, [2007] O.J. No. 3252. The only issue for trial was whether Ms.
Iamkhong's defence could be established that she honestly but mistakenly
believed that she was HIV-negative because she had assumed the Canadian medical
examination included HIV testing. Ducharme J. rejected Ms. Iamkhong's defence
that she held an honest but mistaken belief that the Canadian medical exams
cleared her for HIV. He found, beyond a reasonable doubt, that instead, she
intentionally withheld her HIV-positive status of which she was aware due to
the 1995 test in Hong Kong. Ducharme J. further stated, in the Reasons for
Sentence, "While I do not understand why Ms. Iamkhong did what she did, her
actions can only be described as self-centered, callous and
reprehensible". On January 16, 2007, Ms. Iamkhong was convicted of
criminal negligence and aggravated assault. The decision was upheld by the
Court of Appeal: R. v. Iamkhong, 2009 ONCA 478, [2009] O.J. No. 2446. As
a result of the criminal conviction, she became inadmissible for entry to
Canada, and subject to deportation.
23 Ms. Iamkhong was sentenced initially to three
years, and successfully appealed that sentence, which was reduced to two years
less a day, permitting her to appeal to the Federal Court regarding the
deportation order. Her appeal to the Federal Court was denied, and on August 9,
2010, she was deported from Canada to Thailand.
24 The plaintiff commenced this action on March 31,
2008, four years after he discovered he was HIV-positive. While examinations
for discovery have not been held, there have been extensive cross-examinations
on the affidavits filed in support of the defendants' summary judgment motions.
Voluminous materials have been produced for the purposes of the summary
judgment motions, including documentation from the criminal trial proceedings
and the Federal Court proceedings.
The
Issue
25 The issue to be determined on this summary
judgment motion is whether there are, as against the defendants, any genuine
issues requiring a trial.
26 In the context of this motion, the following
subset of issues have been raised by the parties:
·
1.
Whether this
motion is res judicata based on a previous Rule 21 motion to
strike;
·
2.
Whether the
plaintiff's claim is statute-barred under the Limitations Act, 2002;
·
3.
Whether there
is a duty of care owed by the defendants, or any of them, to the
plaintiff.
Summary
Judgment and Rule 20
27 Rule 20 provides for summary judgment where
there is no genuine issue requiring a trial with respect to a claim or defence.
The Court of Appeal for Ontario provided guidance with respect to the
application of Rule 20 in Combined Air Mechanical Services Inc. v. Flesch,
2011 ONCA 764, [2011] O.J. No. 5431. The Court, at paras. 40-44, identified the
following classes of cases which are generally appropriate for application of
the summary judgment rule:
·
a.
where the
parties agree it is appropriate to determine an action by way of a motion for
summary judgment;
·
b.
where a claim
or defence is without merit; and
·
c.
where the
trial process is not required in the interest of justice.
28 The Court of Appeal in Combined Air, supra,
observed that a judge, faced with a summary judgment motion, must focus on
whether the case is one which does not require the trial process in the
"interest of justice" or require a trial for a fair and just
adjudication of the dispute. The Court observed at paras. 50-52 that:
·
[T]he motion judge must ask the
following question: can the full appreciation of the evidence and issues that
is required to make dispositive findings be achieved by way of summary
judgment, or can this full appreciation only be achieved by way of a trial?
·
We think this "full appreciation
test" provides a useful benchmark for deciding whether or not a trial is
required in the interest of justice. In cases that call for multiple findings
of fact on the basis of conflicting evidence emanating from a number of
witnesses and found in a voluminous record, a summary judgment motion cannot
serve as an adequate substitute for the trial process. Generally speaking, in
those cases, the motion judge simply cannot achieve the full appreciation of
the evidence and issues that is required to make dispositive findings.
Accordingly, the full appreciation test is not met and the "interest of
justice" requires a trial.
·
In contrast, in document-driven cases
with limited testimonial evidence, a motion judge would be able to achieve the
full appreciation of the evidence and issues that is required to make
dispositive findings.
29 The judge hearing a motion for summary judgment
must take a hard look at the evidence adduced by all parties in order to
determine whether there is, or is not, a genuine issue requiring a trial. The
onus of establishing that there is no genuine issue requiring a trial is on the
moving party. Where the moving party establishes that there is no genuine issue
requiring a trial, the onus shifts to the responding party to establish that
there is a genuine issue requiring a trial.
30 In order to defeat a motion for summary
judgment, the responding party must put forward some evidence to show that
there is a genuine issue requiring a trial. A responding party may not rest on
mere allegations or denials of the party's pleadings, but must set out, in
affidavit material or other evidence, specific facts showing that there is a
genuine issue requiring a trial. The court may, where appropriate, draw an
adverse inference from the failure of a party to provide the evidence of any
person having personal knowledge of contested facts. The motion judge is
entitled to assume that the record contains all of the evidence that would be
introduced at trial.
31 A summary judgment motion cannot be defeated by
vague references as to what may be adduced if the matter is allowed to proceed
to trial. Such a proposition would undermine the rationale of Rule 20. The
motion must be judged on the basis of the pleadings and materials actually
before the judge, and not on suppositions about what might be pleaded or proven
in the future. The responding party to a summary judgment motion must
"lead trump or risk losing". The requirement that the parties put
their "best foot forward" goes together with the requirement that the
motion judge "take a hard look at the merits of the action at this
preliminary stage" to determine whether the moving party has succeeded in
establishing that there is no genuine issue requiring a trial: Combined Air,
supra, at para. 15.
32 Pursuant to Rule 20, the motion judge is granted
the powers of weighing the evidence, evaluating the credibility of the deponent
and drawing any reasonable inference from the evidence, in order to determine
whether there is a genuine issue.
33 The defendants submit that this is an
appropriate case for summary judgment, as a full appreciation of the evidence
can be had based on the extensive evidentiary record adduced, including the
prior criminal and immigration proceedings, the affidavit evidence and
transcripts from cross-examinations. The defendants further submit that there
are limited contentious factual issues and that any conflicting evidence that
exists is in limited and non-material areas. Finally, the defendants submit
that the interest of justice and efficiency would be well served by avoiding an
unnecessary trial in this case.
34 The plaintiff submits that the matter involves
contested facts, and that most of the claims in issue involve a mix of
documentary evidence and oral evidence, which turns on credibility. The
plaintiff submits that the viva voce evidence to be adduced at trial can
only be tested with the full machinery of a trial.
35 I am cognizant of the Court of Appeal's
observations in Combined Air at para. 51 regarding the granting of
summary judgment in cases with voluminous documentary evidence and contentious
factual issues. However, as Strathy J., as he then was, noted in Fairview
Donut Inc. v. The TDL Group Corp., 2012 ONSC 1252, [2012] O.J. No. 834 at
para. 396:
·
These observations having been made, a
massive evidentiary record does not preclude the moving party on summary
judgment from making a focused attack on key elements of the claim or defence
of the other party to show that it simply cannot succeed. As the Court of
Appeal noted, there may be claims that do not require extensive resort to
evidence or fact-finding in order to make dispositive findings of fact or law.
It may be appropriate, in such cases, to "weed out" claims that have
no chance of success.
36 Strathy J. found that despite the voluminous
record before him, the defendants' summary judgment motion in Fairview Donut
was a targeted attack on several key elements of the plaintiff's case. The same
is true in this case. The defendants have pointed to clear, undisputed evidence
regarding the allegations and the issues raised herein that, they argue, are
fatal to the plaintiff's claim.
37 I note, as well, that Ms. Iamkhong, a key
witness, has been deported and there is no opportunity to hear her evidence or
observe her as a witness. Therefore, a fuller appreciation of the evidence and
issues in that regard cannot be achieved by way of trial. I conclude that this
is an appropriate case for summary judgment.
38 In addressing the issues raised on this summary
judgment motion, I will deal firstly with the issue of whether this motion is res
judicata based on the decision of Code J., secondly with the issue of the Limitations
Act, 2002 and whether the action is statute-barred, and thirdly with the
issue of whether there is a duty of care owed by the defendants, or any of
them, to the plaintiff.
Is the
Issue before this Court Res Judicata?
The plaintiff
submits that the issues before this Court have already been decided by Code J.,
and are res judicata. The plaintiff submits that it was already decided
by Code J. in Whiteman v. Iamkhong, 2010 ONSC 1456, [2010] O.J. No. 966,
on a motion to strike the plaintiff's claim pursuant to Rule 21.01(1)(b), that:
·
a)
it is not
plain and obvious that the two year limitation period had passed when Whiteman
commenced this action on March 31, 2008;
·
b)
it is not
plain and obvious that the defendant, Her Majesty, its employees, servants and
agents, including but not limited to Dr. Taylor, did not owe a private law duty
of care to the plaintiff in failing to carry out medical investigations;
·
c)
it is not
plain and obvious that the negligence of the defendant, Her Majesty, its
employees, servants and agents, including but not limited to Dr. Taylor, in
causing the plaintiff to contract HIV, assuming it that it can be established,
would not violate the plaintiff's "security of the person";
·
d)
it is not
plain and obvious that the plaintiff's claim for a declaration that any monies
paid to Ms. Iamkhong in social assistance and/or social services are not owing
by the sponsor, the plaintiff, and a declaration that the plaintiff had no
liability to reimburse the monies, will fail;
·
e)
it is not
plain and obvious that the plaintiff's claim for breach of contract against the
defendant, Her Majesty, could not proceed.
39 The plaintiff submits that no appeal was taken
from that decision and, as such, the defendants are bound by that decision.
Further, the plaintiff submits that, based on Code J.'s decision, is it an
abuse of process to re-litigate the issues.
40 The defendants argue that the decision was made
pursuant to Rule 21.01, for which no evidence is permitted, and not pursuant to
Rule 20, which instead requires that all parties must put "their best foot
forward" and produce all evidence intended to be used at trial. They
submit, and I agree, that the test on this motion is different from that
required to be applied by Code J. in the Rule 21.01 motion.
41 The Rule 21.01 motion permits a party to move:
·
(a)
for the
determination, before trial, of a question of law raised by a pleading in an
action where the determination of the question may dispose of all or part of
the action, substantially shorten the trial or result in a substantial saving
of costs; or
·
(b)
to strike out
a pleading on the ground that it discloses no reasonable cause of action or
defence.
42 In this case, Code J.'s decision related to
whether there was a reasonable cause of action disclosed in the Statement of
Claim. No evidence is admissible on a Rule 21.01(1)(b) motion. The issue before
Code J. was whether, assuming the facts as stated in the Statement of Claim can
be proven, it is plain and obvious that the pleading discloses no reasonable
cause of action.
43 This is very different from the issues involved
in a Rule 20 summary judgment motion, where the Court must determine whether
there is a genuine issue requiring a trial with respect to the claim or
defence. On a Rule 20 motion, the Court is required to take a hard look at the
evidence adduced by the parties and is entitled to assume that all evidence to
be relied on by the parties at trial is before the Court. That is the issue to
be determined in this motion, and not the test applicable to a Rule 21.01(1)(b)
motion.
44 I find that the decision of Code J. does not
bind the defendants, nor this Court, on this summary judgment motion. Raising
these issues in light of all of the evidence obtained and put forth before this
Court is not a re-litigation of the issues in the Rule 21.01 motion, and does
not constitute an abuse of process.
Is the
Claim Statute-Barred?
45 All three defendants argue that the plaintiff's
claim is statute-barred and cannot be maintained. They argue that the
plaintiff's action is governed by the Limitations Act, 2002,
which requires that this proceeding be commenced within two years from
"the day on which the claim was discovered", and rely on s. 5(1) of
the Limitations Act, 2002 with respect to discovery of claims.
The defendants submit that the plaintiff's claim was discovered by March 23,
2004, when the plaintiff learned, after testing, that he was HIV-positive. It
was not until more than four years later, on March 31, 2008, that the plaintiff
commenced the action.
46 Counsel for the plaintiff submits that he was
not able to commence an action against the defendants until after the criminal
trial, and after he had heard the sworn testimony of Dr. Rupert Kaul that it
was Ms. Iamkhong's genetic strain of HIV that had been transferred to him.
47 The Defendants submit that this argument is without
merit and not supported by the facts or the jurisprudence. Based on the
plaintiff's own testimony on cross-examination, he did not hear Dr. Kaul's
testimony. Further, it appears that Dr. Kaul gave no such sworn evidence at the
criminal trial. Moreover, the defendants argue that the plaintiff was certain
enough of the source from which he contracted the HIV virus, namely his wife,
Ms. Iamkhong, that when he learned that he had tested HIV-positive, he went
directly to the police to report her. It was on the basis of that report that
criminal charges were ultimately laid against her. In addition, he had
confirmed with another partner with whom he had frequent unprotected sex that
she was HIV-negative. The evidence further indicates that on July 12, 2004, the
plaintiff applied for compensation from the Criminal Injuries Compensation
Board. In that application, he identified himself as the "victim" and
Ms. Iamkhong as the offender. He filed his police statement together with the
application for compensation.
48 With respect to the issue of discoverability,
the caselaw is consistent. A party need only learn "sufficient facts"
upon which to commence a claim and need not be in a position to
"prove" the claim. It is only knowledge, and not proof, of the
material facts that give rise to a cause of action that triggers the running of
the limitation period: see Lawless v. Anderson, 2011 ONCA 102, [2011]
O.J. No. 519 at para. 22; Liu v. Silver, 2010 ONSC 2218, 101 O.R. (3d)
702, aff'd 2010 ONCA 731, [2010] O.J. No. 4636; McSween v. Louis, [2000]
O.J. No. 2076 (C.A.) at paras. 51-52; Berger v. Benchitrit, [2002] O.J.
No. 2857 (Sup. Ct.) at paras. 16-17.
49 Further, the defendants argue that there is an
onus on the plaintiff to exercise reasonable diligence in commencing his claim.
They argue that he cannot sit back with the hope that a criminal process will
provide the information he feels is required before commencing a civil claim:
see Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.) at paras. 13 and
21; Morton v. Cowan, [2003] O.J. No. 3204 (C.A.) at para. 24.
50 Based on my review of the evidence, the
transcripts of cross-examination of the plaintiff, and having considered the
relevant jurisprudence, I find that the plaintiff has confused "the issue
of when a claim is discovered with the process of assembling the necessary
evidentiary support to make the claim 'winnable'": Lawless v. Anderson,
supra, at para. 36. In this case, the sufficient facts material to the
claim were known by the plaintiff at the time that he was diagnosed as
HIV-positive, on March 23, 2004. The plaintiff testified that he suspected that
he had contracted HIV from Ms. Iamkhong. Indeed, he suspected her sufficiently,
according to the evidence, that on March 24, 2004, the day after he learned
that he had HIV, he attended at the police station and gave an oral statement
to Detective Stowell, which launched the police investigation and,
subsequently, the criminal charge against Ms. Iamkhong.
51 The plaintiff takes the position that he needed
conclusive evidence of the fact that Ms. Iamkhong transmitted HIV to him, which
required awaiting the criminal trial. However, it is clear from the transcripts
that Mr. Whiteman did not hear the evidence of Dr. Kaul, as he was excluded
from the courtroom. Further, it appears that Dr. Kaul did not, in fact, give
such evidence, and the plaintiff testified in cross-examination on his
affidavit in this motion that he believed that he obtained the evidence
regarding the strain of HIV from something said to him by one of the police
officers.
52 Other than the issue of discoverability, there
is no provision in the statute to extend the limitation period: Hanson v.
St. Joseph's Healthcare Hamilton, 2011 ONSC 897, [2011] O.J. No. 531 at para.
25. Ignorance of the limitation period does not relieve the plaintiff from its
operation: Webster v. Almore Trading & Manufacturing Co., 2010 ONSC
354, [2010] O.J. No. 3284 at para. 9; Nicholas v. McCarthy Tétrault,
[2008] O.J. No. 4258 at para. 27 (Sup. Ct.), aff'd 2009 ONCA 692, leave to
appeal ref'd [2009] S.C.C.A. No. 476.
53 While I am mindful that discoverability can
itself be a triable issue, the fact that the discoverability doctrine is at
issue does not, in itself, mean that there is a genuine issue requiring a
trial. The application of the limitation period may be determined in a motion
for summary judgment under the amended Rule 20. As stated above, under Rule 20,
this Court has the power to weigh evidence, evaluate credibility and draw any
reasonable inferences from the evidence. In the present case, based on the
transcripts from the criminal proceedings, the affidavits filed in this motion
and the transcripts from cross-examinations thereon, there is sufficient
evidence upon which to determine whether the plaintiff had, at the time he
learned that he had contracted the HIV virus, sufficient material facts on
which this action could be commenced. Based on his testimony on
cross-examination, his statements given to the police on March 24, 2004, and
his application to the Criminal Injuries Compensation Board for compensation as
a victim of crime, there is sufficient evidence to make a determination in this
regard. The only information that was obtained at the criminal trial, which may
in fact have been obtained from the police with no direct evidence from Dr.
Kaul, was in the way of "proof" or "supporting evidence"
and not "material facts".
54 I find that the plaintiff has failed to
discharge the onus on him to prove (1) that the claim was issued within the
limitation period, and (2) that the material facts giving rise to the action
were not within his knowledge and could not, through reasonable diligence, have
been within his knowledge within the time prescribed by the Limitations Act,
2002. As indicated above, I find that the plaintiff had sufficient facts
upon which to commence the claim by March of 2004 or, at the latest, at the
time that he filed his application for compensation with the Criminal Injuries
Compensation Board on July 12, 2004. Accordingly, this action is
statute-barred.
55 I will, nevertheless, proceeded to determine the
other issues raised on this summary judgment motion.
Was
There a Duty of Care Owed to the Plaintiff by the Defendants or Any of Them?
The AG of
Canada
56 The defendant, the AG of Canada, argues that
pursuant to ss. 3(a) and 10 of the Crown Liability and Proceedings Act,
R.S.C. 1985, c. C-50, the Crown's liability is vicarious only. It submits that
the Crown can only be liable in tort if a Crown servant or agent is found to be
personally liable. It follows that if it does not appear from a claim that some
Crown servant would be personally liable if sued, then there can be no cause of
action against the Crown. It argues that the onus is on the plaintiff to
demonstrate that he would have a cause of action in tort against some servant
of the Crown in order to pursue a claim. However, in this case, the pleadings
have not identified any action of any Crown servant as giving rise to any duty
that may result in liability.
57 The Crown further argues that its policy
decisions with respect to immigration are immune from tort liability. It argues
that HIV testing for immigrants to Canada did not become mandatory until 2002,
that it was a government policy decision and, at common law, government policy
decisions are not justiciable and cannot give rise to tort liability. The core
policy government decisions that are protected from suit are those based on
public policy considerations, such as economic, social and political factors,
provided they are not irrational or taken in bad faith: R. v. Imperial
Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 90. Further,
the Crown argues, it is a well-established principle of immigration law that
Parliament has the right to adopt an immigration policy and to enact
legislation prescribing the conditions under which non-citizens will be
permitted to enter and remain in Canada: Reza v. Canada, [1994] 2 S.C.R.
394; Canada (Minister of Employment and Immigration) v. Chiarelli,
[1992] 1 S.C.R. 711 at para. 27.
58 In Canada, the protection of public health and
the provision of public health services are divided among the federal,
provincial and local levels of government. The province of Ontario has the
primary responsibility for public health within the province. The federal
government is responsible for health policy, health regulations, health
promotion, disease prevention and healthy living for all Canadians, including
promotion of the physical, mental and social well-being of the people in
Canada. Immigration legislation principally regulates the flow of short and
long-term immigration to Canada. The general objectives, as set out in s. 3 of
the Immigration and Refugee Protection Act, supra, include
"to protect the health and safety of Canadians and to maintain the
security of Canadian society".
59 The plaintiff appears to allege that the CIC was
negligent in not testing Ms. Iamkhong for HIV when she applied for the
extension of her work visa in 1996, or in not testing her when she applied for
permanent residency status sponsored by the plaintiff in 1999. However, as a
matter of policy, HIV testing was not mandatory in 1999, but only
discretionary, based on a number of risk factors.
60 The defendant argues that this was a bona
fide policy decision which was not so irrational or unreasonable as to
constitute an improper exercise of governmental discretion. At that time, the
1997 guidelines indicated that country of origin, race, gender and sexual
orientation, by itself, was not sufficient reason to warrant HIV testing.
Further, for short-term temporary visas of six months or more, where medical
examination is required, applicants were only to undergo HIV testing if signs
of the acquired immunodeficiency syndrome were present. Further, for applicants
applying for permanent residence in Canada, HIV testing was required only when
clinically indicated by the presence of certain relevant factors. For temporary
workers applying to reside in Canada for less than six months, no immigration
medical screening was required.
61 I find, on a balance of probabilities, that Ms.
Iamkhong did not disclose the fact that she had tested HIV-positive to the
medical doctors at the time of the medical examinations, particularly given
that she was seeking entry to Canada. I base this finding on the following
evidence:
·
a)
Ms. Iamkhong
failed to disclose, even to her husband, that she had tested positive for HIV
in 1995, that her previous husband had died of HIV in 1995 and that she had
been a prostitute in Hong Kong;
·
b)
the
electronic records which exist with respect to the immigration medical
examinations in October 1995, which indicate that she was screened as
"medically cleared";
·
c)
her
applications for work permit extensions, which indicate that she denied that
she suffered from any mental or physical illness; and d) the fact that the
immigration medical records were not kept.
62 With respect to the plaintiff's allegation that
the Crown owed him a private law duty of care, the Crown argues that policy
decisions are immune from tort liability. It is only where statutes indicate
that Parliament intended to create a private law duty that parties involved
have sufficient proximity in their relationship to give rise to a duty of care.
63 The Crown argues that the facts alleged do not
support a finding of a duty of care by the Federal Crown to the plaintiff. In
the absence of such a duty of care, the plaintiff's claim against the Federal
Crown must fail. The Crown argues that the jurisprudence has consistently
established that while all immigration authorities may owe a public law duty to
the residents of Canada generally, a breach of such a public law duty does not
give rise to a private law cause of action as there is not a sufficient
relationship of proximity under the first branch of the Anns test and
public policy considerations vitiate against the imposition of any such duty: Khalil
v. Canada, 2007 FC 923, [2007] F.C.J. No. 1221, aff'd 2009 FCA 66; Paszkowski
v. Canada (Attorney General), 2006 FC 198, [2006] F.C.J. No. 248; Szebenyi
v. Canada, 2006 FC 602, [2006] F.C.J. No. 762, aff'd 2007 FCA 118; Farzam
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1659, [2005]
F.C.J. No. 2035.
Establishing
a Private Law Duty of Care
64 As there is no previously recognized duty of
care between individual Canadians and the federal immigration authorities, the
test for establishing a private law duty of care is applicable. This test,
established by the House of Lords in Anns v. Merton London Borough Council,
[1978] A.C. 728 and adopted by the Supreme Court of Canada in Kamloops (City
of) v. Nielson, [1984] 2 S.C.R. 2, is as follows:
·
1.
Is there a
sufficiently close relationship between the parties so that, in the reasonable
contemplation of the defendant, carelessness on its part may cause damage to
the plaintiff?
·
2.
If so, are
there any considerations which ought to negative or limit the duty of
care?
65 This test was affirmed by the Supreme Court of
Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263,
where the Court held at para. 52 that the following must be proven:
·
1.
that the harm
complained of is a reasonably foreseeable consequence of the alleged
breach;
·
2.
that there is
sufficient proximity between the parties that it would not be unjust or unfair
to impose a duty of care on the defendants; and,
·
3.
that there
exist no policy reasons to negative or otherwise restrict that duty.
Is the Harm
Complained of a Reasonably Foreseeable Consequence of the Alleged Breach?
66 The Supreme Court of Canada in Syl Apps
Secure Treatment Center v. D(B), 2007 SCC 38, [2007] 3 S.C.R. 83 at paras.
25-26, described "reasonable foreseeability" as follows:
·
The basic proposition underlying
"reasonable foreseeability" is that everyone "must take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour" (Donaghue v. Stevenson,
[1932] A.C. 562 (H.L.), per Lord Atkin, at p. 580). The question is whether the
person harmed was "so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected" (ibid).
·
There must also be a relationship of
sufficient proximity between the plaintiff and defendant. The purpose of this
aspect of the analysis was explained by Allen Linden and Bruce Feldthusen in Canadian
Tort Law (8th ed. 2006) as being to decide "whether, despite the
reasonable foresight of harm, it is unjust or unfair to hold the defendant
subject to a duty because of the absence of any relationship of proximity
between the plaintiff and the defendant" (p. 304).
67 The plaintiff submits that, in the circumstances
of this case, the harm is foreseeable. He argues that the harm, namely, Mr.
Whiteman's contraction of HIV from his wife, Ms. Iamkhong, was the reasonably
foreseeable consequence of the acts of the Crown and Dr. Taylor in either
testing Ms. Iamkhong for HIV and not properly reporting the results, or in the
alternative, in failing to test her for HIV when it would have been appropriate
to do so.
68 The AG of Canada argues that there is no
foreseeability. The Crown argues that the foreseeability which the plaintiff
must establish to succeed in this action must create a link between a
particular act or omission on its part and the injury to the plaintiff, in this
case, Mr. Whiteman's contraction of the HIV virus from his wife, Ms. Iamkhong.
The Crown argues that the facts do not establish the necessary causal link
between acts of the CIC and the harm suffered by the plaintiff.
69 However, the Court of Appeal has stated that
"the proper reasonable foreseeability analysis ... requires only that the
general harm, not "its manner of incidence", be reasonably
foreseeable": Bingley v. Morrison Fuels, a Division of 503373 Ontario
Ltd., 2009 ONCA 319, 95 O.R. (3d) 191 at para. 24. For the purposes of the
foreseeability analysis, it is enough if one could "foresee in a general
way the sort of thing that happened. The extent of the damage and its manner of
incidence need not be foreseeable if physical damage of the kind which in fact
ensues is foreseeable": Bingley at para. 21, citing Assiniboine
School Division No. 3 v. Hoffer, [1971] M.J. No. 39 (C.A.), aff'd [1973]
S.C.J. No. 48.
70 I am of the view that it would have been
reasonably foreseeable to the Crown that a failure to test Ms. Iamkhong for HIV
could, in the event that she tested positive, have resulted in Ms. Iamkhong
going on to infect someone, including the plaintiff with HIV.
Is there
sufficient proximity between the parties such that it would not be unjust or
unfair to impose a duty of care on the defendant?
71 As set forth above, at paragraph 66,
foreseeability alone is not sufficient to establish a private law duty of care.
There must also be a relationship of sufficient proximity.
72 The plaintiff argues that there is a close and
direct relationship of proximity between the defendants, the AG of Canada and
Dr. Taylor as its agent, and the plaintiff, on the basis that he contracted
with the Crown to be a sponsor of Ms. Iamkhong, and that as a sponsor who has
entered into a written undertaking with the Crown, a special relationship of
proximity exists between the sponsor and the Crown.
73 The Crown argues that in reading the IRPA
as a whole, and the medical admissibility sections in particular, none of the
factors which would usually give rise to a finding of proximity are present.
74 In Cooper v. Hobart, 2001 SCC 79, [2001]
3 S.C.R. 537 at paras. 32-33, the Supreme Court described proximity as follows:
·
"Proximity" is the term used
to describe the "close and direct" relationship that Lord Atkin
described as necessary to grounding a duty of care in Donoghue v. Stevenson,
supra, at pp. 580-81:
·
Who then, in law, is my neighbour? The
answer seems to be - persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected when
I am directing my mind to the acts or omissions which are called in question
....
·
As this Court stated in Hercules
Management Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, at para. 24, per
La Forest J.:
·
The label "proximity" as it
was used by Lord Wilberforce in Anns, supra, was clearly intended
to connote that the circumstances of the relationship inhering between the
plaintiff and the defendant are of such a nature that the defendant may be said
to be under an obligation to be mindful of the plaintiff's legitimate interests
in conducting his or her affairs.
75 Proximity is determined by examining various
factors, rather than a single unifying characteristic or test. Factors
considered in defining the proximity of a relationship include the
expectations, representations, reliance and the property or other interests
involved: Cooper, supra, at paras. 34-35. In Odhavji, supra,
Iacobucci J. outlined at para. 55 other factors that could give rise to
proximity as including causal nexus, the parties' expectations and any assumed
or imposed obligations.
76 The Supreme Court stated in Cooper, supra,
at paras. 43-44, that in the case of public authorities, proximity must arise
from the governing statute. In that case, a general duty to the public by the
Registrar of Mortgage Brokers did not translate into a duty to particular
investors.
77 The Supreme Court subsequently clarified, in Imperial
Tobacco, supra, at para. 43, that it is possible for proximity to
arise either from statute or from interactions between the plaintiff and the
Crown, as follows:
·
Two situations may be distinguished.
The first is the situation where the alleged duty of care is said to arise
explicitly or by implication from the statutory scheme. The second is the
situation where the duty of care is alleged to arise from interactions between
the claimant and the government, and is not negated by the statute.
78 The Court, at para. 44, described the first
situation, where a statutory duty is created between the Crown and particular
claimants.
·
The argument in the first kind of case
is that the statute itself creates a private relationship of proximity giving
rise to a prima facie duty of care. It may be difficult to find that a
statute creates sufficient proximity to give rise to a duty of care. Some
statutes may impose duties on state actors with respect to particular
claimants. However, more often, statutes are aimed at public goods, like
regulating an industry (Cooper), or removing children from harmful
environments (Syl Apps). In such cases, it may be difficult to infer
that the legislature intended to create private law tort duties to claimants.
This may be even more difficult if the recognition of a private law duty would
conflict with the public authority's duty to the public: see, e.g., Cooper
and Syl Apps. As stated in Syl Apps, "[w]here an alleged
duty of care is found to conflict with an overarching statutory or public duty,
this may constitute a compelling policy reason for refusing to find
proximity" (at para. 28; see also Fullowka v. Pinkerton's of Canada
Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, at para. 39).
79 The Court went on, at para. 45, to describe the
second situation, where the government creates a special relationship with the
plaintiff through its conduct.
·
The second situation is where the
proximity essential to the private duty of care is alleged to arise from a
series of specific interactions between the government and the claimant. The
argument in these cases is that the government has, through its conduct,
entered into a special relationship with the plaintiff sufficient to establish
the necessary proximity for a duty of care. In these cases, the governing
statutes are still relevant to the analysis. For instance, if a finding of
proximity would conflict with the state's general public duty established by
the statute, the court may hold that no proximity arises: Syl Apps; see
also Heaslip Estate v. Mansfield Ski Club Inc., 2009 ONCA 594, 96 O.R.
(3d) 401. However, the factor that gives rise to a duty of care in these types
of cases is the specific interactions between the government actor and the
claimant.
80 The Supreme Court, at para. 46, also
acknowledged the possibility of "a claim where proximity is based both on
interactions between the parties and the government's statutory duties."
81 As in Imperial Tobacco, supra, the
Court concluded that the government had not, either by statute or by
representations, created a duty of care to cigarette customers. Rather, it had
a general duty to protect the health of the public. Similarly, in Williams
v. Canada (Attorney General), 2009 ONCA 378, 95 O.R. (3d) 401, leave to
appeal ref'd [2009] S.C.C.A. No. 298, a general duty to the public by Health
Canada to establish health care standards did not translate into a duty to
particular persons who became infected with SARS.
82 In reading the Immigration Act as a
whole, and the medical admissibility section in particular, none of the factors
which would usually give rise to a finding of proximity are present. The Act
cannot be construed as creating reasonable expectations on the part of one
individual, in this case the plaintiff, that CIC would take any particular
steps to protect that individual. Indeed, the overall mandate is to protect
Canadians generally. It cannot be said that there is a private law duty for
individual Canadian citizens arising from this general statutory mandate.
83 On a close reading of the IRPA, as a
whole, there is no private law duty which arises from the statute. Moreover, as
argued by the Crown, the immigration legislation is not specifically geared to
providing protection for potential sexual partners of prospective immigrants,
but rather seeks to balance many competing interests and to ensure the
efficient operation of the immigration flow into Canada in the interest of the
public as a whole. As the Supreme Court of Canada determined in Cooper, supra,
at para. 50, a finding of a duty of care to individuals (in that case
investors) would "no doubt come at the expense of other important interests,
of efficiency and finally at the expense of public confidence in the system as
a whole." That observation is apt in this case.
84 With respect to the second situation described
in Imperial Tobacco, supra, can it be said that the government,
through its conduct, entered into a special relationship with the plaintiff
sufficient to establish the necessary proximity for a duty of care? As
recognized in Imperial Tobacco, supra, the governing statute is
still relevant to the analysis; but if there is a finding of proximity that
would conflict with the state's general public duty established by the statute,
the court may hold that no proximity arises.
85 In this case, the plaintiff submits that there
is proximity by virtue of the contractual relationship with the government
resulting from the sponsorship application. As discussed above, factors
considered in defining the proximity of the relationship include
representations, reliance, property or other interests involved, causal nexus,
parties' expectations, and any assumed or imposed obligations.
The
Plaintiff's Sponsorship Argument
86 Pursuant to the standard immigration process,
when the plaintiff agreed to sponsor Ms. Iamkhong, he signed an undertaking to
sponsor her and reimburse the government for social service expenses incurred
by her for a specific period of time, as required under the IRPA. The
plaintiff later made a request to have the sponsorship waived, which was
denied. He did not challenge that decision by way of judicial review as contemplated
by the relevant legislation. Accordingly, the defendant states that the
plaintiff's entire claim, as founded upon his sponsorship of Ms. Iamkhong, is
barred by the fact that he failed to first exhaust the available appeal route.
87 The government argues that private contract law
does not govern the interpretation of the sponsorship undertaking, as the
sponsorship undertaking is not a contract and is not a negotiated bargain.
Rather, it is a mandatory requirement for sponsorship of a relative as a result
of statutory provisions. Any breach of the undertaking gives rise to a debt due
to the government, not unlike a tax debt: Canada (Attorney General) v. Mavi,
2011 SCC 30, [2011] 2 S.C.R. 504.
88 I am of the opinion that the sponsorship
agreement does not give rise to "proximity" for purposes of this
case. Further, there is no ground on which to waive the plaintiff's
responsibilities under the agreement.
Reliance
89 Moreover in the present case, the evidence
indicates that no representations were made to the plaintiff by the government
or Dr. Taylor regarding HIV testing. It is further clear from the evidence that
the plaintiff and Ms. Iamkhong were sexually active, engaging in both protected
and unprotected sex, from 1996, and were married in 1997, two years before the
plaintiff acted as Ms. Iamkhong's sponsor for permanent immigration status. In
other words, the relationship had become personal and intimate well before the
sponsorship application and the IME conducted by Dr. Taylor. Thus, it is not
open to the plaintiff to argue that he entered a relationship with Ms. Iamkhong
on any reliance on the Crown or Dr. Taylor. There is also no evidence that the
plaintiff relied on immigration authorities before engaging in sexual relations
with Ms. Iamkhong, which was an intimate and personal decision on his part.
Further, on cross-examination, the plaintiff stated that he continued to engage
in sexual relations with Ms. Iamkhong while she also engaged in sexual
relations with others.
90 It also cannot be said that there was a causal
nexus between the immigration sponsorship in 1999 and the plaintiff's
contracting HIV from Ms. Iamkhong, as the sexual relationship with his wife had
commenced more than two years prior to the sponsorship application. While,
pursuant to the sponsorship, he did undertake an obligation to support Ms.
Iamkhong, this would not create the necessary proximity to found a private law
duty of care, considering the factual circumstances of this case. I accept the
defendants' submission that the plaintiff was, from his first encounter with
Ms. Iamkhong, in the best position to protect himself.
91 There is no evidence to suggest that the Crown
knew of Ms. Iamkhong's history in the sex industry, as alleged by the
plaintiff. Nor is there evidence to indicate that the Crown or Dr. Taylor knew
that Ms. Iamkhong was HIV-positive at the time of her entry to Canada, or at
the time of the extension of her work visa.
Section 7
Charter Rights
92 While the plaintiff alleged a breach of his s. 7
Charter Rights in the statement of claim, this argument was not included in his
factum filed in this motion, nor argued before me at the motion.
93 Although the Crown did include written argument
regarding the non-applicability of the Charter, I decline to determine this
issue in the absence of its pursuit as an issue by the plaintiff in written and
oral submissions.
94 Based on all of the foregoing, I am of the view
that a full appreciation of the claims against the Crown can be had on this
summary judgment motion without the full machinery of a trial. I find that
there are no genuine issues requiring a trial as against the Crown.
95 Based on the foregoing analysis, I am satisfied
that there is not sufficient proximity between the parties to impose a duty of
care and that, in the circumstances of this case, a private law duty of care
cannot be established.
Are There
Policy Reasons to Negative or Otherwise Restrict the Duty, If One Were Found?
96 In this case, I have concluded that no private
law duty of care is established. Nevertheless, I will provide my determination
regarding the second stage of the Anns test.
97 The second stage of the test for establishing a
private duty of care, as set forth in Odhavji, is whether there exist
policy reasons to negative or otherwise restrict the duty of care, if one were
found. This is explained in Cooper, supra, at para. 39, as follows:
·
[The second stage of the test] ensures
that before a duty of care is imposed in a new situation, not only are
foreseeability and relational proximity present, but there are no broader
considerations that would make imposition of a duty of care unwise.
98 The Supreme Court in Cooper, supra,
found that this enquiry is not concerned with the relationship between the
parties, but with the effect of recognizing a duty of care on other legal
obligations, the legal system and society more generally.
99 As observed by Iacobucci J, in Odhavji, supra:
·
[T]he question to be asked is whether
there exist broad policy considerations that would make the imposition of a
duty of care unwise, despite the fact that harm was a reasonably foreseeable
consequence of the conduct in question and there was a sufficient degree of
proximity between the parties that the imposition of a duty would not be
unfair.
100 The AG of Canada set forth numerous policy
considerations which it argues militate against imposing a duty of care. Among
the policy considerations listed is the fact that legislative decision-making,
including the contents of the medical regulations, has been found to be immune
from tort law. Decisions that can properly be characterized as bona fide
policy decisions will be immune from tort liability as long as they are not so
irrational or unreasonable as to constitute an improper exercise of
governmental discretion. A number of legislative policy decisions were made
regarding immigration requirements and related medical examinations. In this
case, the legislative and policy decisions do not give rise to a private law
duty of care owed to any specific individuals, but rather are mandated for the
general protection and well-being of the Canadian public.
101 The intention of the legislation and policy was
not to prohibit all HIV-infected individuals from entering Canada, nor to
protect each individual in Canada from having to take the necessary precautions
in order to avoid sexually-transmitted disease. The medical admissibility
procedures and requirements for a sponsorship undertaking are meant to control
and limit the risk of public exposure and expenditure, but not to alleviate the
need for individuals to take normal precautionary steps, in this case with
respect to engaging in sexual activity. The Crown argues that the taxpayer
should not be required to insure the risk associated with the sexual activity
of others. Further, the spectre of liability in an indeterminate amount for an
indeterminate time to an indeterminate class would loom large if a duty of care
were recognized: see Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5,
[2010] 1 S.C.R. 132.
102 Policies regarding public health involve placing
considerations of collective risk and benefits to the population-at-large above
considerations as to the possible effects on individuals. Imposing a private
law duty of care in this case would place unnecessarily costly burdens on the
immigration system.
103 The defendants further argue that the plaintiff
is in the best position to control the risk and that there is no reason to
transfer the risk to the government for the benefit of this plaintiff.
104 On the other hand, the plaintiff submits that
particular sponsors of immigrants who have entered into written undertakings
with the Crown and who have suffered compensable harm as a result of the
negligent investigation of the sponsored applicant by the Crown are not a vast
or unlimited class of potential plaintiffs. Accordingly, the plaintiff argues
that there is no compelling policy consideration that would negate the duty of
care.
105 Even if I had found that both foreseeability and
proximity existed in this case, there are legitimate policy grounds to negative
any potential private law duty of care. The governmental actions on which the
plaintiff seeks to found a duty of care are policy decisions which do not give
rise to civil liability. They are not operational in nature. In this regard, I
have considered the following cases: Cooper, supra, Just v.
British Columbia, [1989] 2 S.C.R. 1228; Kamloops, supra; and McLean
v. Toronto (City) Police Services, [2001] O.J. No. 2882 (Sup. Ct.).
Vicarious
Liability for Dr. Taylor
106 The plaintiff seeks to impose liability on the
government for the actions of Dr. Taylor, who the plaintiff alleges is an agent
of the government. The plaintiff submits that, in his cross-examination, Dr.
Taylor did use the word "agent", which he argues is instructive of
the issue. However, there is nothing to suggest that Dr. Taylor used the term
in the legal sense. The government argues that Dr. Taylor is not its agent and,
as such, it is not directly, vicariously or otherwise liable for his acts or
omissions in assessing Ms. Iamkhong for the purpose of the immigration medical
screenings.
107 The government argues that DMPs are independent,
private physicians, whose conduct is governed by their professional obligations
and regulatory bodies. The DMP is a discretionary designation given by CIC's
Medical Services Branch. According to the affidavit evidence of Dr. Michel
Lapointe, there are approximately 1,000 DMPs throughout the world and over
550,000 medical examinations performed each year. The designation process has
the objective of ensuring that IMEs are carried out by qualified and licensed physicians.
While CIC monitors DMPs, the DMP performing a medical examination is chosen by
the applicant, as was done in this case by Ms. Iamkhong. The applicant pays the
DMP directly. The DMP must respect the medical professional norms of the
licensing body to which he or she belongs. The DMP is responsible for using a
reliable laboratory for conducting tests when needed. The DMP has his or her
own medical practice, office, equipment and support staff. The applicant must
sign a release before the DMP can disclose information to CIC and, unless the
release is signed, the confidentiality of the relationship is maintained and
the information cannot be disclosed by the DMP to the federal government.
108 Based on the evidence regarding DMPs and their
practices as set forth above, it cannot be said that Dr. Taylor is a servant or
agent of the Crown, so as to impose vicarious liability on the Crown. I note,
similarly, that in a hospital setting, hospitals are not responsible in law for
the conduct of independent medical practitioners who have been granted hospital
privileges: Yepremian v. Scarborough General Hospital (1980), 28 O.R.
(2d) 494 at 513.
109 Alternatively, the government argues that the
medical examination was conducted with a reasonable and competent degree of
professional skill, care and attention and pursuant to the requisite
regulations. The Crown argues that there is no evidence to the contrary.
110 A physician is only liable for damages sustained
by his or her patients where he or she fails to apply that degree of skill,
care and learning ordinarily possessed and exercised by other physicians in the
same circumstances: Crits v. Sylvester, [1956] O.R. 132 (C.A.) at 143,
aff'd [1956] S.C.R. 991; Kennedy v. Jackiewicz, [2004] O.J. No. 4816 (C.A.)
at para. 19, leave to appeal ref'd [2005] S.C.C.A. No. 27.
111 Where the plaintiff fails to provide expert
evidence that the defendant fell below the standard of care, the plaintiff
cannot meet its onus of proving negligence: Claus v. Wolfman, [1999]
O.J. No. 5023 (Sup. Ct.), aff'd (2000) 52 O.R. (3d) 680 (C.A.); Ryabikhina
v. St. Michael's Hospital, 2011 ONSC 1884, [2011] O.J. No. 1779 (Sup. Ct.)
at para. 31; McNeil v. Easterbrook, [2004] O.J. No. 3976 (Sup. Ct.) at
para. 16.
112 In this case, the parties served expert reports,
including the following. The plaintiff's counsel has served a limited expert
report from Dr. Brian Willoughby in response to discrete questions from
plaintiff's counsel. In cross-examination, Dr. Willoughby acknowledged that he
had not been asked to opine on the standard of care of Dr. Taylor, that he is
not a DMP, and that he would defer to the opinion of the defendant's expert
insofar as his experience as a DMP is concerned. In cross-examination, Dr.
Willoughby stated that if a DMP were aware that the individual applicant came
from Thailand where she had performed as an exotic dancer and was applying for
a special visa as an exotic dancer to work in a strip club, it would seem
reasonable for the DMP to exercise his discretion in ordering an HIV test.
However, he did not provide an opinion on whether Dr. Taylor fell below the
standard of care of a DMP in such circumstances. While he provided an opinion
on one reasonable course of action, he provided no opinion with respect to
whether declining to order the HIV test in the circumstances would have fallen
below the standard of care for a DMP. I note that Dr. Willoughby's opinion is
also premised on the assumption that Dr. Taylor was aware of the fact that Ms.
Iamkhong was an exotic dancer in Thailand who was working at a strip club in
Canada. There is nothing in the record to establish that Dr. Taylor was made
aware of this information. Ms. Iamkhong wrote on her permanent residency
application that she was a "dancer" in Thailand. In
cross-examination, Dr. Willoughby conceded that this category does not in
itself increase the risk of HIV.
113 I find that based on all of the evidence
adduced, and based on the absence of an expert report stating that Dr. Taylor
fell below the standard of care, the plaintiff's claim against Dr. Taylor
cannot succeed. The vicarious liability claim also cannot succeed.
Dr. Taylor
114 I have already found that the plaintiff's action
is statute-barred, but I will nevertheless proceed with the determination of
the other issues raised in this motion.
115 With respect to the summary judgment motion
brought by Dr. Taylor relating to the negligence claim, Dr. Taylor submits that
he owes no duty of care to the plaintiff. He argues that there is no
established duty of care owed by a doctor to a third party who contracted a
disease from an individual on whom the doctor had conducted a medical
assessment, on behalf of another third party. Accordingly, in order to be
successful at trial, the plaintiff must be able to demonstrate that a new
category of relationship should be established under the Anns test, as
set forth above.
116 Counsel for Dr. Taylor argues that, in the
circumstances of this case, there is no reasonable foreseeability and no proximity,
given the circumstances under which Ms. Iamkhong saw Dr. Taylor and the limited
duty of care that Dr. Taylor owed to Ms. Iamkhong. Dr. Taylor and Ms. Iamkhong
were never in a doctor-patient relationship, but rather Dr. Taylor conducted
one IME of Ms. Iamkhong and had no further involvement in her care. With
respect to the lack of a relationship, Dr. Taylor relies on the cases of X
(minors) v. Bedfordshire County Council, [1995] 3 All E.R. 353 (H.L.) and Branco
v. Sunnybrook & Women's College Health Sciences Center, [2003] O.J. No.
3287 (Sup. Ct.).
117 Can it be said that the harm is reasonably
foreseeable in the circumstances of this case and, secondly, that there was a
relationship of sufficient proximity between Dr. Taylor and Mr. Whiteman to found
a duty of care?
118 Firstly, concerning reasonable foreseeability,
the plaintiff was a third party who Dr. Taylor had never met and with whom he
had never discussed the circumstances of Ms. Iamkhong's health. However, as
with the Crown, it would have been reasonably foreseeable to Dr. Taylor that a
failure to test Ms. Iamkhong for HIV could, if she tested positive, have
resulted in Ms. Iamkhong going on to infect someone, including the plaintiff,
with HIV.
119 As indicated above, this alone does not found a
duty of care.
120 Secondly, concerning proximity, I find that
there is not sufficient proximity to create a duty of care owed by Dr. Taylor
to the third party plaintiff, and that, in the circumstances of this case,
based on all of the facts presented, it would not be reasonable, fair or just
to impose such a duty. Even if one were to find that a general duty of care was
owed to Ms. Iamkhong, which I have not found, it would not be reasonably
foreseeable that a third party, the plaintiff, and a person that Dr. Taylor had
never met, nor with whom Dr. Taylor had even discussed the circumstances of Ms.
Iamkhong's health, would owe a duty of care to the plaintiff, nor would it be
reasonable or reasonably foreseeable that the third party plaintiff would rely
on Dr. Taylor's medical assessment of Ms. Iamkhong. In the present case, it
cannot be said that there was a reasonable prospect or an expectation that the
plaintiff would rely upon Dr. Taylor's IME of Ms. Iamkhong as a basis to
conclude that she did not have HIV throughout their marriage. Based on the
evidence here, the plaintiff and Ms. Iamkhong had already been sexually active
for at least two years prior to the IME conducted by Dr. Taylor. The plaintiff
therefore could not have relied on the IME in determining whether it was safe
to have sexual relations with Ms. Iamkhong.
121 There is also no evidence to suggest that the
plaintiff met with Dr. Taylor. There is no evidence that the plaintiff asked
him any questions with respect to Ms. Iamkhong, whether an HIV test had been
conducted, or whether it was safe to have unprotected sex with her. There is no
evidence on which to find any direct relationship between Dr. Taylor and the
plaintiff which could establish proximity between them.
122 Also relevant to the proximity analysis is the
fact that Dr. Taylor and Ms. Iamkhong were not in a doctor-patient
relationship. The evidence, reviewed above, indicates that Ms. Iamkhong
selected Dr. Taylor from a list of DMPs and attended at his offices on one
occasion for the required IME. There is no evidence regarding that examination
except for that reviewed above, as the medical file of Dr. Taylor was
destroyed. The plaintiff submits that an adverse inference should be drawn from
this, as it was against his office policy, which was to retain files for ten
years. However, as Dr. Taylor testified on cross-examination on his affidavit,
Ms. Iamkhong was not a patient of his, as he only saw her once for the IME, and
therefore the office ten-year retention policy did not apply. I note that the
destruction of his file was consistent with the governmental policy for
destruction of non-contentious files after two years.
123 Further, there is no evidence that Dr. Taylor
knew of Ms. Iamkhong's history in the sex industry or that she had previously
tested positive for HIV. Based on all of the evidence, there is reason to
believe that she did not divulge this or any of her past history to Dr. Taylor,
just as she did not divulge it to her own husband, the plaintiff.
124 Further, with respect to foreseeability and
proximity as regards an alleged act of omission (rather than an overt act) to
prevent an intentional tort of a third party, the nature of the relationship
must be examined to determine whether there is a nexus between the parties. In
this regard, I am mindful of the dicta in Childs v. Desormeaux,
[2006] 1 S.C.R. 643 (S.C.C.) at paragraph 31, 36-37. I do not find any nexus or
proximity between the plaintiff and Dr. Taylor in the circumstances of this
case.
125 I conclude that a prima facie duty of
care has not been established because the proximity requirement has not been
made out.
126 Although I have found no duty of care existed in
the circumstances, I also find that under the second stage of the Anns
test, there are policy reasons to negate a duty of care, had one been found.
127 Firstly, there is significant potential for
indeterminate liability if a duty of care were found to be owing by a doctor to
third parties who the doctor has never met nor treated. Even where the duty is
limited to the circumstances involved here, namely doctors providing IMEs for
immigration purposes, the number of third parties who could be affected is so
vast as to be considered unlimited.
128 Secondly, the duty sought to be imposed is, in
essence, a duty to prevent an intentional tort of another person, over whom
they have no control, and in circumstances where the doctor can only act on the
basis of the information which has been disclosed to him. To impose a duty in such
circumstances would be contrary to public policy.
129 If I had found that a novel duty of care should
be recognized, the next issue would be whether Dr. Taylor breached the standard
of care. While the statement of claim alleges that Dr. Taylor was required to
conduct the HIV test, there is no evidence of such a requirement. Indeed, there
was no mandatory testing for HIV as part of an IME until 2002.
130 Counsel for Dr. Taylor further argues that the
plaintiff's claim has no chance of success at trial, given that the plaintiff
has not tendered expert evidence stating that Dr. Taylor fell below the
standard of care.
131 The plaintiff argues that this Court can take
judicial notice of the fact that Dr. Taylor should have exercised his
discretion to do testing where the applicant, a potential immigrant, is an
exotic dancer and sex trade worker from Thailand, that this is a matter of
common sense, within the ordinary knowledge and experience of this Court, and
does not require an expert report. I am of the view that this is not a fact for
which judicial notice should be taken. Further, the evidence does not support
the argument that Dr. Taylor was advised that Ms. Iamkhong was an exotic dancer
and/or a sex trade worker.
132 As discussed above at paras. 110-113, negligence
cannot be established unless a plaintiff tenders expert evidence showing a
breach of the standard of care. As also discussed above, the plaintiff's
expert, Dr. Willoughby, was not a DMP and he specifically testified that he was
not in a position to comment on what the standard of care of a DMP was in
1999.He did not opine as to the standard of care and whether Dr. Taylor fell
below that standard. Further, his opinion was premised on the assumption that
Dr. Taylor was aware that Ms. Iamkhong was an exotic dancer and was going to
work at a strip club in Canada, although there is nothing in the record to
suggest that Dr. Taylor was made aware of this information. Moreover, the
guidelines that were applicable at the time specifically stated that country of
origin was, in itself, not a sufficient basis to test for HIV.
133 Dr. Mascarenas, who provided an opinion on
behalf of Dr. Taylor, concluded that Dr. Taylor did meet the required standard
of care. In the absence of an expert report opining that Dr. Taylor fell below
the standard of care, the plaintiff cannot establish liability. I have made my
finding in that regard at para. 113.
134 I find that a full appreciation of the claims
against Dr. Taylor and the evidence with respect thereto can be obtained on
this summary judgment motion without the requirement of a trial. There is no
genuine issue requiring a trial with respect to the allegations against Dr.
Taylor.
Zanzibar
Tavern
135 Zanzibar Tavern alleges that there is no genuine
issue for trial with respect to the claim advanced by the plaintiff and submits
that the Zanzibar does not owe any legal duty to the plaintiff arising from the
allegations contained in the Statement of Claim and the evidence before this
Court.
136 The plaintiff's allegations against the
defendants are set forth at paragraph 4, above. The basis for the plaintiff's
claim against Zanzibar is that the plaintiff relied upon statements made by Mr.
Waterman. However the evidence at the criminal trial does not support this and,
indeed, undercuts the factual foundation relied on by the plaintiff.
137 The essence of the plaintiff's argument with
respect to vicarious liability is that Mr. Waterman, the General Manager of
Zanzibar, accompanied Ms. Iamkhong to the medical examination at the time she
sought an extension of her work permit, and that he told her that she was not
HIV-positive. The plaintiff alleges that he believed, as a result of Mr.
Waterman's statement, that she was "clean". However, at the criminal
trial, Ducharme J. rejected this argument and her defence of mistaken belief,
based on what she said that Mr. Waterman told her. As set forth in paragraph 22
above, Ducharme J. found, beyond a reasonable doubt, that she could not have
held this honest but mistaken belief and, instead, she intentionally withheld
her HIV-positive status of which she was aware due to the 1995 test in Hong
Kong.
138 While the plaintiff claims that the evidence
given by Ms. Iamkhong at the criminal trial was that Mr. Waterman advised her
that she did not have HIV, the transcript from the criminal trial does not
support this claim. That transcript indicates that there was no evidence that
Ms. Iamkhong had been told by Mr. Waterman that she had been cleared by the
Canadian medical examinations and did not have HIV. Rather, the transcript
evidence indicates that when asked by Ducharme J. whether Mr. Waterman
specifically told her that she did not have HIV, she responded "No."
Her testimony in response to Ducharme J's question was as follows:
·
No. When I went for a medical check
here in Canada my belief was that this is a more developed country, the medical
standards is a lot higher. So I trusted that they would have tested everything.
And I believed that I did not have the HIV-positive either.
139 Thus, it was simply Ms. Iamkhong's belief that,
when she went for the IME in Canada, she was tested for HIV, without ever
having been told that this was the case. The factual evidence relied upon by
the plaintiff is mischaracterized and cannot support the plaintiff's
allegations. Moreover, at the criminal trial, Ducharme J. found that Ms.
Iamkhong consciously withheld the information regarding her HIV status from
both the medical professionals she dealt with and, ultimately, Mr. Whiteman.
140 Further, the evidence from Mr. Waterman was that
he had no information as to Ms. Iamkhong's HIV status prior to 2004, when she
became ill and was diagnosed. He also stated that at no time did he speak to
any doctors regarding her medical condition or advise her of any medical
information or test results. These assertions are unchallenged and
uncontradicted.
141 There was, in evidence before me, an Artist's
Engagement Contract executed between Zanzibar Tavern Inc. and Ms. Iamkhong on
September 5, 1997, which sets forth the terms and conditions of her engagement
with Zanzibar. Among the terms in this contract is the following:
·
8.
The Artist must
ensure that she is in good health and free from any communicable diseases. The
Artist must be free from any criminal records.
142 Ms. Iamkhong signed this contract in 1997.
However, she knew at that time that she had been diagnosed as HIV-positive in
Hong Kong, prior to coming to Canada in 1995. This evidence also supports her
failure to disclose her medical diagnosis and condition upon entry to Canada.
143 Moreover, there was no evidence adduced before
me to indicate that the plaintiff ever spoke, himself, with Mr. Waterman or
anyone from Zanzibar regarding Ms. Iamkhong's health.
144 The evidence indicates that signage posted in
Zanzibar forbids contact with dancers. The plaintiff, who was a frequenter of
Zanzibar, testified that this was ignored by patrons, who would become intimate
with the dancers in dark corners or a back room. The plaintiff's evidence
indicates that he and Ms. Iamkhong would go to her apartment above Zanzibar to
have sexual encounters.
145 Counsel for Zanzibar further submits that the
plaintiff cannot sustain a cause of action against it with respect to damages
caused by the transmission of an HIV infection between husband and wife. It
further notes that the plaintiff has not alleged in the material that he became
infected at the Zanzibar.
146 The plaintiff's testimony indicates that he
chose to engage in unprotected sex, a risky enterprise, with Ms. Iamkhong and
with others, both during one- and two-night stands and for longer interludes.
The evidence further indicates that the plaintiff knew that Ms. Iamkhong was
having unprotected sex with others. There is no evidence to suggest that the
plaintiff ever sought assurance from the Crown, doctors, Dr. Taylor, or
Zanzibar regarding whether his risky choice was safe, either with Ms. Iamkhong
or with any of his other sexual partners.
147 I find that a full appreciation of the claims as
against Zanzibar and the evidence with respect thereto can be obtained on this
summary judgment motion. In all of the circumstances of this case, and on the
evidence produced by the parties, there is no genuine issue requiring a trial
with respect to the allegations against Zanzibar.
Conclusion
148 I have found, for the reasons above, that the
actions brought by the plaintiff are statute-barred.
149 I have further found, based on the voluminous
record, documentary and transcript evidence before me, including the record of
the criminal trial and the immigration proceedings, based on the jurisprudence
and the submissions of all parties, that this is an appropriate case for a
determination of summary judgment before trial. A full appreciation of the
evidence relevant to the issues can be had without the full machinery of a
trial. I am satisfied, based on all of the evidence, that there are no genuine
issues requiring a trial with respect to the claims advanced by the plaintiff
as against the AG of Canada, Dr. Taylor or Zanzibar Tavern.
150 While Mr. Whiteman's circumstances are tragic, I
find that they were not caused by the defendants, nor was there any causal
connection between himself and the AG of Canada, Dr. Taylor or Zanzibar. I have
concluded that none of the defendants are responsible for the plaintiff's
contraction of HIV. It must be concluded that Mr. Whiteman was the author of
his own misfortune.
Costs
151 I would urge the parties to agree upon costs,
failing which I would invite the parties to provide any costs submissions in
writing, to be limited to three pages, including the costs outline. The
submissions may be forwarded to my attention, through Judges' Administration at
361 University Avenue, within thirty days of the release of this Endorsement.
C.J. BROWN J.
