SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-151761 PD3
DATE: 20131030

RE: Percy Wilbert Whiteman, Plaintiff

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Suwalee Iamkhong a.k.a. Ricky Iamkhong, the Attorney General of Canada,

Dr. Martin Taylor and Zanzibar Tavern Inc., Defendants

BEFORE: Carole J. Brown J.

COUNSEL: Maurice Benzaquen, for the Plaintiff

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

Christopher Hubbard and Bryn E. Gray, for the Defendant, Dr. Martin Taylor

Allyson Fox, Michael Collis and Joshua Siegel, for the Defendant, Zanzibar Tavern Inc.

HEARD: January 31, 2012, February 1, 2012 and March 21, 2013

ENDORSEMENT

Overview of the Action

Suwalee Iamkhong, a.k.a. Ricky Iamkhong

[1] This action is brought by Percy Wilbert Whiteman (“Mr. Whiteman”) who alleges that his former sexual partner and wife, the defendant, Suwalee Iamkhong, a.k.a. Ricky Iamkhong (“Ms. Iamkhong”), knowingly infected him with the Human Immunodeficiency Virus (“HIV”) sometime in 2003. He further claims intentional infliction of emotional distress. The plaintiff alleges that Ms. Iamkhong was aware, when she came to Canada in 1995, that she had HIV. He further alleges that she failed to disclose her HIV status to him in an intentional fraud which she orchestrated in order to secure immigration sponsorship into Canada by marriage with the plaintiff. As against the other defendants, the plaintiff claims that they failed to take appropriate steps to prevent Ms. Iamkhong from committing an intentional tort, and that they committed fraud.

The Attorney General of Canada

[2] The plaintiff incorrectly named Her Majesty the Queen in Right of Canada, which should have been the Attorney General of Canada (“the AG of Canada” or “the Crown”). The plaintiff alleges that the AG of Canada knew or ought to have known that Ms. Iamkhong was HIV-positive; negligently and/or intentionally failed to warn the plaintiff of the health condition of Ms. Iamkhong prior to accepting his application for sponsorship of her; negligently and/or intentionally allowed the plaintiff to enter into a sponsorship contract without full disclosure and without providing consideration in exchange for the sponsorship undertaking; and was negligently and/or willfully blind to Ms. Iamkhong’s perpetration of her fraud and later covered up its negligence and knowledge. The plaintiff also alleges that the AG of Canada is vicariously liable for the actions of Dr. Taylor, as its “agent”. The plaintiff further alleges that the AG of Canada breached his rights under s. 7 of the Canadian Charter of Rights and Freedoms by allowing Ms. Iamkhong to enter Canada on a work permit, by renewing her work permit and by approving her for permanent residency status without following the practices, protocols and procedures of testing would-be immigrants at high risk for contracting, carrying and transmitting HIV including, but not limited to, administering an HIV test. The plaintiff alleges that Thailand, from which Ms. Iamkhong immigrated was, at the material time, known to have significant heterosexual HIV transmission.

Dr. Martin Taylor

[3] As against Dr. Martin Taylor (“Dr. Taylor”), the plaintiff alleges that he knew or ought to have known that Ms. Iamkhong was HIV-positive or, in the alternative, negligently and/or intentionally failed to administer the proper medical examination as required under the immigration process; failed to report Ms. Iamkhong’s HIV-positive status to her family physician and/or the appropriate government health agencies so that they could monitor Ms. Iamkhong and contact/protect her sexual partners, including the plaintiff; negligently and/or intentionally failed to comply with the Health Protection and Promotion Act, R.S.O. 1990, ch. 7; negligently and/or intentionally failed to take steps to protect the public, including the plaintiff, from the spread of HIV, and later covered up their negligence and knowledge.

Zanzibar Tavern

[4] As against Zanzibar Tavern (“Zanzibar”), the plaintiff claims that it is vicariously liable for the actions of its employee, its part in endangering the public, including the plaintiff and its other employees, by allowing Ms. Iamkhong to work as an exotic dancer without imposing restrictions on her with respect to the goal of protecting and guarding against the spread of HIV; for its willful blindness to the fact that its employee, Ms. Iamkhong, was willfully and/or negligently putting the public and her co-workers at risk when she was engaging in particular aspects of her employment, and for its willful blindness to the fact that Ms. Iamkhong was HIV-positive and was not disclosing her status to the Immigration Officials or the appropriate government health agencies. Based on Ms. Iamkhong’s testimony at her criminal trial, the plaintiff claims that Zanzibar, through its employee, Wally Waterman (“Mr. Waterman”), had accompanied Ms. Iamkhong for her immigration medical examination for purposes of her work permit, that he spoke with the doctor and then advised her that she was not HIV-positive and, thereafter, she felt that it was safe to have unprotected sex with the plaintiff.

The Motion

[5] It is extremely unfortunate, indeed tragic, that Mr. Whiteman contracted HIV from his wife, the defendant, Ms. Iamkhong, an exotic dancer at the defendant, Zanzibar Tavern, and an immigrant from Thailand, who he sponsored for permanent residency in Canada. The question to be determined is whether any of the parties named as defendants in his claim are or could be liable.

[6] Ms. Iamkhong is no longer in Canada, having been convicted of assault causing bodily harm for transmitting HIV to Mr. Whiteman without advising him that she had tested positive for HIV in Thailand. As a result of the conviction, she was deported.

[7] While Ms. Iamkhong was found criminally responsible for Mr. Whiteman’s present HIV status, the issues to be determined in this action are whether any or all of the other defendants could be held responsible for Mr. Whiteman’s contraction of HIV.

[8] The defendants, Dr. Taylor, the AG of Canada, and Zanzibar Tavern bring this motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground that the plaintiff’s claims have no chance of success and that there is no genuine issue requiring a trial.

(Full decision text continues exactly as in the source.)