Ontario civil | Tort
LIMITATIONS
Action by plaintiff arising from wife’s transmission of HIV was statute-barred
Plaintiff's wife came to Canada from Thailand on work visa. Plaintiff claimed wife was aware that she had HIV when she came to Canada and failed to disclose her HIV status to him in intentional fraud orchestrated to secure immigration sponsorship into Canada by marriage. Plaintiff claimed Attorney General of Canada knew or ought to have known wife was HIV-positive and negligently or intentionally failed to warn plaintiff prior to accepting application for sponsorship and was vicariously liable for alleged negligent actions of defendant doctor. Plaintiff claimed defendant club was vicariously liable for actions of employees by allowing wife to work as exotic dancer without imposing restrictions on her with respect to goal of guarding against spread of HIV. Plaintiff was diagnosed as HIV-positive. Wife was deported after being convicted of assault causing bodily harm for transmitting HIV to plaintiff without advising him that she tested positive for HIV in Thailand. Husband brought action four years after he discovered he was HIV-positive. Defendants brought motion for summary judgment. Motion was granted. Motion judge concluded that action was statute-barred pursuant to ss. 4 and 5 of Limitations Act, 2002. Plaintiff appealed. Appeal dismissed. Plaintiff raised ss. 10 and 16(1)(h) of act for first time on appeal. Plaintiff's argument that he was incapable of commencing proceeding within meaning of s. 10 of act was foreclosed by motion judge's finding that plaintiff had sufficient facts upon which to base claim by March 2004 or July 2004 at latest. Finding was reasonable on evidence. It would be contrary to interests of justice to entertain plaintiff's argument for first time on appeal respecting possible application of s. 16(1)(h) of act. There was no causal link established between plaintiff's sponsorship undertaking given to government of Canada or decision to grant wife permanent resident status and his infection with HIV.
Whiteman v. Iamkhong (Jun. 22, 2015, Ont. C.A., John Laskin J.A., G. Pardu J.A., and David Brown J.A., File No. CA C57975) Decision at 235 A.C.W.S. (3d) 803 was affirmed. 256 A.C.W.S. (3d) 435.
