A gay Toronto man who concealed his sexual history on a blood donor questionnaire and was sued for negligence by Canadian Blood Services has lost in Ontario Superior Court.

In a decision released Thursday, the court sided with CBS in its suit against Kyle Freeman for “negligent misrepresentation.”

The court said Freeman did not have a Charter of Rights and Freedoms defence against the claim of negligence.

The decision essentially upholds the current CBS practice of prohibiting men who have had sex with other men anytime since 1977 from donating blood.

Freeman donated blood several times between 1990 and 2002. Each time, he falsely denied that he had had sex with another man since 1977. The court has now found him liable for $10,000.

He had launched a counterclaim under the charter, alleging the policy violates his constitutional right to equal treatment regardless of sexual orientation.

In dismissing a constitutional challenge of that policy, Ontario Superior Court Justice Catherine Aitken ruled that Canadian Blood Services is not a government entity, so the Charter of Rights does not apply.

Donating blood, she found, is not a right afforded by law.

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