Plaintiff alleged in her statement of claim that parties began romantic relationship in July of 2002 and engaged in protected sexual intercourse. Subsequently, they began to have unprotected sex on basis of defendant’s representations that he did not have any sexually transmitted diseases and that he had recently tested negative for HIV. Parties were married in August 2003. In spring of 2012, relationship broke down. In November 2012, plaintiff tested positive for Herpes Simplex Virus-Type 2 (HSV-2). Plaintiff claimed damages for sexual assault and battery, intentional or negligent transmission of HSV-2, intentional or negligent misrepresentation and breach of fiduciary duty. Defendant brought motion to strike portions of plaintiff’s statement of claim related to allegations of breach of fiduciary duty, as failing to disclose reasonable cause of action. Motion dismissed. Statement of claim, when read as whole, pleaded necessary elements for fiduciary duty. It was open to court to find that that undertaking to disclose certain information to spouse was inherent to spousal relationship. It was not plain and obvious that per se or ad hoc fiduciary relationship alleged to arise between parties from marriage would fail. There were no public policy concerns that would militate against that finding.
Vaseloff v. Leo (Oct. 3, 2014, Ont. S.C.J., Carole J. Brown J., File No. CV-13-493846) 245 A.C.W.S. (3d) 554.