Illegality, (void for)

Johnson v. Lazzarino, 1999 CanLII 18678 (ON CA)

BY THE COURT: We agree with the analysis of Sharpe J. The Rule in question was intended to regulate the professional conduct of members of the Institute of Chartered Accountants of Ontario by prohibiting contingency fees. It did not provide that contracts entered into in contravention of the Rule were void or otherwise unenforceable.

The professional consequences to the respondent flowing from his alleged breach of that Rule are for the Institute. The effect, if any, of the breach of that Rule on the validity of the contract made between the parties is for the court to determine applying judge-made rules applicable to allegations that a contract is void for illegality.

As Sharpe J. observes, this court favours an approach which looks to the purpose animating the statute which is said to have been violated, and the circumstances under which the particular contract was made and then asks whether it would be contrary to public policy to enforce the contract: Beer v. Townsgate I Ltd. (1997), 1997 CanLII 976 (ON CA), 36 O.R. (3d) 136, 152 D.L.R. (4th) 671 (C.A.). In this case, the alleged breach of the Rule had no impact on the creation of the contract, caused no harm to the appellants, and did not affect the performance of the contract. Indeed, by the time payment was due under the contract, the rules had been amended so as to permit contingency fees like that contemplated in this agreement.

To give effect to the appellant's argument would be to sanction to unjust enrichment of the appellant without in any way furthering the regulatory purposes of the Rule. In our view, that would not be good public policy.

Runciman v Wilkins, 2018 CanLII 110985 (ON SCSM)

46. Early in the trial I had queried whether the court can enforce an illegal contract. Counsel for the plaintiff Andrew Ferguson states that one possibility is to sever the legal from the illegal parts of the contract. If I were to do so, then I would only consider the litigation dealing with the “permitted” work - the garage and breezeway. Alternatively, he says, I could dismiss both claims.

...

70. Ultimately, I must decide what parts of Pastor Wilkins claim should properly be considered by the court, given that the scope of the work planned included both what was permitted, and what was not, and how to deal with his claim based on the duty to carry out a contract in good faith. I do not think that this is a proper case to enforce the illegal parts of a contract. Both parties went into this with their eyes wide open. Pastor Wilkins did so because it was cheaper and more efficacious: he thought he could complete the job within a $100,000 envelope and do so more quickly, with less intervention from the authorities. He would have his mother-in-law as a paying tenant, and would enhance the value of his property.