COURT OF APPEAL FOR ONTARIO

CITATION: Whiteman v. Iamkhong, 2015 ONCA 564

DATE: 20150729

DOCKET: C57975

Laskin, Pardu and Brown JJ.A.

BETWEEN

Percy Wilbert Whiteman

Appellant

and

Suwalee Iamkhong, a.k.a. Ricky Iamkhong, Her Majesty the Queen in Right of Canada, The Attorney General of Canada, Dr. Martin Taylor, and Zanzibar Tavern Inc.

Respondents

Talman Rodocker and Joe Giuliana, for the appellant

Marina Stefanovic and Kareena Wilding, for the respondent The Attorney General of Canada

Allyson Fox, for the respondent Zanzibar Tavern Inc.

Christopher Hubbard and Carole Piovesan, for the respondent Dr. Martin Taylor

Heard and released orally: June 22, 2015

On appeal from the judgment of Justice Carole J. Brown of the Superior Court of Justice, dated October 30, 2013.

ENDORSEMENT

[1] The appellant, Percy Whiteman, appeals from the summary judgment granted by C. Brown J. dated October 30, 2013, in which she dismissed the appellant’s action against Her Majesty the Queen in Right of Canada, The Attorney General of Canada, Dr. Martin Taylor, and Zanzibar Tavern Inc.

[2] We are of the view that the appeal can be disposed of on the basis of the limitations period issue, and on the basis that no causal link was established between the appellant’s sponsorship undertaking given to the government of Canada or the decision to grant his wife permanent resident status, and his infection with HIV.

[3] The motion judge concluded that the appellant’s action against the respondents was statute-barred by reason of ss. 4 and 5 of the Limitations Act, 2002. On this appeal, the appellant does not take issue with that conclusion.

[4] Instead, the appellant raises for the first time the argument that his action against the respondents is not statute-barred because of the operation of ss. 10 and 16(1)(h) of the Limitations Act. Section 10(1) tolls the running of the limitation period in respect of a claim based on assault or sexual assault during “any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.” Section 16(1)(h) states that there is no limitation period in respect of a proceeding “arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether financially or otherwise.”

[5] Notwithstanding several amendments to his pleading, the appellant did not plead ss. 10 and 16(1)(h) of the Limitations Act, nor did he raise those sections during the argument of the summary judgment motion.

[6] In Kaiman v. Graham, 2009 ONCA 77, this court stated, at para. 18:

The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal… The burden is on the appellant to persuade the appellate court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”… In the end, however, the decision of whether to grant leave to allow a new argument is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties…

[7] The appellant’s argument that he was incapable of commencing the proceeding within the meaning of s. 10 of the Limitations Act is foreclosed by the motion judge’s finding that he had sufficient facts upon which to base a claim by March of 2004, or at the latest, when he filed his application for compensation with the Criminal Injuries Compensation Board in July 12, 2004. This finding was reasonable on the evidence before the motion judge.

[8] In our view, it would be contrary to the interests of justice to entertain the appellant’s argument for the first time on appeal respecting the possible application of s. 16(1)(h) of the Limitations Act. On a motion for summary judgment, a responding party must put its best foot forward or risk losing the motion. The possible application of s. 16(1)(h) to the appellant’s cause of action would require a consideration of evidence as to whether Ms. Iamkhong was in a position of trust in relation to the appellant at the time of the assault which infected him. We are not satisfied that all the facts necessary to address these points are before this court as fully as if the issue had been raised on the summary judgment motion. Further, there is no suggestion by the appellant that the evidence relevant to these points only became known to him after the summary judgment motion had been argued and decided.

[9] The appellant had been having unprotected sex with his girlfriend, later his wife, for more than two years before giving the sponsorship undertaking. There was no evidence led by him establishing that but for the actions of the federal government, he would not have become HIV positive. Expert evidence on this issue was essential.

[10] The appellant concedes that the action was properly dismissed against Dr. Taylor.

[11] Accordingly, we dismiss the appeal.

[12] At the hearing of the appeal counsel advised they would take a week to discuss costs. To date, counsel have not informed the court about any resolution of the cost issue. Accordingly, any respondent who seeks costs against the appellant shall deliver a bill of costs and brief cost submissions not exceeding three pages in length no later than August 28, 2015, and the appellant shall deliver responding cost submissions not exceeding three pages in length no later than September 11, 2015.

“John Laskin J.A.”

“G. Pardu J.A.”

“David Brown J.A.”