Ex turpi Doctrine

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.]