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.,
Suwalee Iamkhong a.k.a. Ricky Iamkhong, the Attorney General
of Canada, Dr. Martin Taylor and Zanzibar Tavern Inc.,
 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.
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.
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.
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.
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.
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.
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.
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,  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,  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.
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:
Whether this motion is res judicata based on a previous Rule 21 motion to strike;
Whether the plaintiff's claim is statute-barred under the Limitations Act, 2002;
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,  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:
where the parties agree it is appropriate to determine an action by way of a motion for summary judgment;
where a claim or defence is without merit; and
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,  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,  O.J. No. 966, on a motion to strike the plaintiff's claim pursuant to Rule 21.01(1)(b), that:
it is not plain and obvious that the two year limitation period had passed when Whiteman commenced this action on March 31, 2008;
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;
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";
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;
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:
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
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,  O.J. No. 519 at para. 22; Liu v. Silver, 2010 ONSC 2218, 101 O.R. (3d) 702, aff'd 2010 ONCA 731,  O.J. No. 4636; McSween v. Louis,  O.J. No. 2076 (C.A.) at paras. 51-52; Berger v. Benchitrit,  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,  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,  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,  O.J. No. 3284 at para. 9; Nicholas v. McCarthy Tétrault,  O.J. No. 4258 at para. 27 (Sup. Ct.), aff'd 2009 ONCA 692, leave to appeal ref'd  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,  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,  2 S.C.R. 394; Canada (Minister of Employment and Immigration) v. Chiarelli,  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:
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;
the electronic records which exist with respect to the immigration medical examinations in October 1995, which indicate that she was screened as "medically cleared";
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,  F.C.J. No. 1221, aff'd 2009 FCA 66; Paszkowski v. Canada (Attorney General), 2006 FC 198,  F.C.J. No. 248; Szebenyi v. Canada, 2006 FC 602,  F.C.J. No. 762, aff'd 2007 FCA 118; Farzam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1659,  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,  A.C. 728 and adopted by the Supreme Court of Canada in Kamloops (City of) v. Nielson,  2 S.C.R. 2, is as follows:
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?
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,  3 S.C.R. 263, where the Court held at para. 52 that the following must be proven:
that the harm complained of is a reasonably foreseeable consequence of the alleged breach;
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,
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,  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,  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,  M.J. No. 39 (C.A.), aff'd  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,  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,  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,  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  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,  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.
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,  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,  2 S.C.R. 1228; Kamloops, supra; and McLean v. Toronto (City) Police Services,  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,  O.R. 132 (C.A.) at 143, aff'd  S.C.R. 991; Kennedy v. Jackiewicz,  O.J. No. 4816 (C.A.) at para. 19, leave to appeal ref'd  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,  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,  O.J. No. 1779 (Sup. Ct.) at para. 31; McNeil v. Easterbrook,  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.
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,  3 All E.R. 353 (H.L.) and Branco v. Sunnybrook & Women's College Health Sciences Center,  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,  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.
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:
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.
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.
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.