



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 appellants
    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 appellants 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 appellants 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 appellants argument that he was incapable of commencing the
    proceeding within the meaning of s. 10 of the
Limitations Act
is
    foreclosed by the motion judges 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 appellants 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
    appellants 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.


