Documentation:Torts/Illegality
Illegality
The defence of illegality reflects the Latin expression ex turpi causa non oritur actio – "from a dishonourable cause an action does not arise" – and is a defence rooted in public policy.[1] It rarely succeeds.[2] This defence "was developed to ensure that the judicial process not be use for abusive, illegal purposes".[1]
Elements of the defence
| Illegality defence as described in Hall v. Herbert[3] |
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| 1. This doctrine applies in tort law "where it will be necessity to invoke [it] in order to maintain the internal consistency of the law"; |
| 2. "This concern will arise where a given plaintiff genuinely seeks to profit from his or her illegal conduct, or where claimed compensation would amount to an evasion of criminal sanction" |
In Canada, the courts can "bar recovery in tort on the grounds of the plaintiff's immoral or illegal conduct but only in very limited circumstances. The basis of this power...lies in the duty of the courts to preserve the integrity of the legal system, and is exercisable only where this concern is in issue".[3]
| YouTube |
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| Public Policy, Illegality, and Contracts |
| In 2015, Lord (Tony) Grabiner KC delivered the Allen & Overt Annual Law Lecture for the Cambridge Private Law Centre.
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Issue of damages and remedies
While the illegality defence will "bar the plaintiff from obtaining a profit from an illegal act...[it will not bar them] from compensation for personal injuries".[4] When a plaintiff is contributorily negligent, while their compensation can be reduced, it "cannot be wholly denied by reason of his disreputable or criminal conduct".
The courts are reluctant to give effect to claims that would tend to undermine the just administration of law, an event called stultification.[5] As a remedy "arising from an illegal act may frustrate the policy underlying illegality ... it may be appropriate to refuse the [remedy] in order to preserve the integrity of the legal system".[5]
Issues with duty of care
The Supreme Court of Canada has rejected "the notion that illegal or immoral conduct by the plaintiff precludes the existence of a duty of care".[6] The Court in Hall v. Herbert provided several reasons for why the defence of illegality should exist separate from judicial discretion in regards to a duty of care analysis.
The Court discussed that "to treat it as going to duty of care would inappropriately place on the plaintiff the onus of showing the absence of disentitling conduct ... [that] the duty of care approach is an all or nothing approach, an cannot be applied selectively to discreet heads of damages ... [and f]inally, the consideration of illegal immoral conduct at the stage of determining the duty of care would raise procedural problems where concurrent claims are made in tort an contract".[3]
Discussion questions
- How has judicial understanding of the defence of illegality evolved over the years? Have courts employed it more or less 'leniently'?
Quiz
- ↑ 1.0 1.1 Kim v. Choi, 2020 BCCA 98 (§18.3) at para 33.
- ↑ Norberg v. Wynrib, 1992 CanLII 65 (SCC) (§18.3.1) at para 50.
- ↑ 3.0 3.1 3.2 Hall v. Hebert, 1993 2 S.C.R. 159.
- ↑ Kim v. Choi, 2020 BCCA 98 (§18.3) at para 46.
- ↑ 5.0 5.1 Kim v. Choi, 2020 BCCA 98 (§18.3) at para 49.
- ↑ Rankin’s Garage & Sales v. J.J., 2018 SCC 19 (§18.3.2) at para 63.