Ex turpi Doctrine

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Date Retrieved:	2024-04-18
CLNP Page ID:	1774
Page Categories:	Legal Prinicples
Citation:	Ex turpi Doctrine, CLNP 1774, <4D>, retrieved on 2024-04-18
Editor:	MKent
Last Updated:	2021/10/14

Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 SCR 159

Per La Forest, L'Heureux‑Dubé, McLachlin and Iacobucci JJ.: Courts can bar recovery in tort on the ground of the plaintiff's immoral or illegal conduct but only in very limited circumstances. The basis of this power lies in duty of the courts to preserve the integrity of the legal system, and is exercisable only where this concern is in issue. Generally, the ex turpi causa principle will not operate in tort to deny damages for personal injury, since tort suits will generally be based on a claim for compensation. The use of ex turpi causa is not justified where the plaintiff's claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant since no inconsistency is introduced into the fabric of the law in making such an award.

The defence of ex turpi causa non oritur actio should not be replaced with a judicial discretion to negate or refuse to consider a duty of care on a policy basis. Shifting the analysis to the issue of duty provides no new insight into the fundamental question of when the courts should be entitled to deny recovery in tort to a plaintiff on the ground of the plaintiff's immoral or illegal conduct. It would also introduce a series of new problems.

(a)The Underlying Rational ‑‑ The Integrity of the Judicial Process

The power expressed in the maxim ex turpi causa non oritur actio finds its roots in the insistence of the courts that the judicial process not be used for abusive, illegal purposes. Thus Professor Gibson, in "Comment: Illegality of Plaintiff's Conduct as a Defence" (1969), 47 Can. Bar Rev. 89, at p. 89, writes:

Few would quarrel with the proposition that a man who murders his wealthy aunt should not be allowed to receive the proceeds of her life insurance as beneficiary, or that two robbers who disagree over the division of the spoils would not be allowed to settle their dispute in a court of law. It was to deal with flagrant abuses like these that English courts developed the principle expressed in the maxim: ex turpi causa non oritur actio ‑‑ no right of action arises from a base cause. [Emphasis added.]

British Columbia v. Zastowny, 2008 SCC 4 (CanLII), [2008] 1 SCR 27

The doctrine of ex turpi causa non oritur actio is a defence that invalidates an otherwise valid and enforceable tort action in order to preserve the integrity of the legal system. It precludes damage awards that allow a person to profit from illegal or wrongful conduct or that permit evasion or rebate of a penalty prescribed by the criminal law. It does not preclude damages for personal injury. Because it is a defence, it is independent of the duty of care owed by the defendant and the defendant must prove that the plaintiff’s illegal or immoral conduct precludes the action. In this case, Z should not be compensated for loss of wages while in prison because such compensation would constitute a rebate of the consequences of Z’s criminal acts. Z is personally responsible for his acts and their consequences. He cannot attribute them to others and evade or seek rebate of those consequences. No distinction should be made between “core time” of incarceration and “extra time” because Z’s lawfully imposed sentence consisted of both time before and after parole eligibility. [18] [20] [22] [30] [32]

The novus actus interveniens doctrine should not be conflated with the ex turpi doctrine. A factual chain of causation is not broken because the civil law is brought into conflict with the criminal law. Applying the novus actus doctrine in this case would inappropriately suggest that the chain of causation was broken by Z going to prison. No basis arises to interfere with the trial judge’s finding of causation or the damages awarded for wages lost when Z was not in prison. The award for past wage loss should be reduced to exclude the periods of time when Z was in prison. [36-39

[20] The question is, “under what circumstances should the immoral or criminal conduct of a plaintiff bar the plaintiff from recovering damages to which he or she would otherwise be entitled” (p. 169). The following principles and approach are established in Hall v. Hebert and are applicable in the present case.

1. Application of the ex turpi doctrine in the tort context invalidates otherwise valid and enforceable actions in tort (p. 169).

2. Therefore, its application must be based on a firm doctrinal foundation and be made subject to clear limits and should occur “in very limited circumstances” (p. 169).

3. The only justification for its application is the preservation of the integrity of the legal system. This concern is only in issue where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law (p. 169).

It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which — contract, tort, the criminal law — must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to “create an intolerable fissure in the law’s conceptually seamless web”: Weinrib, supra, at p. 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system. [p. 176]

4. The ex turpi doctrine generally does not preclude an award of damages in tort because such awards tend to compensate the plaintiff rather than amount to “profit”:

Such damages accomplish nothing more than to put the plaintiff in the position he or she would have been in had the tort not occurred. . . . [A plaintiff should get] only the value of, or a substitute for, the injuries he or she has suffered by the fault of another. He or she gets nothing for or by reason of the fact he or she was engaged in illegal conduct. [pp. 176-77]

5. The ex turpi doctrine is a defence in a tort action. The plaintiff’s illegal conduct does not give rise to a judicial discretion to negate or refuse to consider the duty of care which goes to the relationship between a plaintiff and a defendant. It is independent of that relationship. The defendant may have caused harm by acting wrongly or negligently, but the “responsibility for this wrong is suspended only because concern for the integrity of the legal system trumps the concern that the defendant be responsible” (pp. 181-82).

6. Treating the ex turpi doctrine as a defence places the onus on the defendant to prove the illegal or immoral conduct that precludes the plaintiff’s action. And as a defence, it allows for segregation between claims for personal injury and claims that would constitute profit from illegal or immoral conduct or the evasion of or a rebate of a penalty provided by the criminal law.