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The Ex Turpi Doctrine in a Tort Action

October 17, 2021

British Columbia

,

Canada

Issue

What are the principles of the doctrine of ex turpi causa non oritur actio?

Conclusion

Illegal conduct can bar recovery in tort but only in limited circumstances. It operates as a defence, and then only when the integrity of the legal system is threatened by the claim, such as in situations where the plaintiff is attempting to profit from his illegal conduct, or when a tort claim is used to circumvent, subvert, or negate a criminal penalty. (Hall v Hebert)

The following principles are applicable to the maxim of ex turpi causa:

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

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”.

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.

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. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system

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”.

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.

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. (Daemore v. Von Windheim)

In Daemore v. Von Windheim, the British Columbia Supreme Court considered the maxim of ex turpi causa non oritur actio in the context of a family law dispute. The claimant was a lifelong criminal, and both parties and been repeatedly and on an ongoing basis, including in recent years, jointly engaged in various forms of wrongful activity. Justice Voith did not rely on the maxim in his decision. Instead, looking specifically at the apportionment of matrimonial property, Justice Voith considered himself unable to make the necessary determinations due concerns about the credibility of the parties and the lack of reliable evidence from either party.

In J.T.L. v. R.G.L., Harvey J. addressed the ambit and applicability of the ex turpi doctrine in a matrimonial case which dealt with the ownership and distribution of properties which had been obtained illegally. Harvey J. declined to apply the ex turpi doctrine. This was, in part, based on the principled concern that application of the doctrine would cause the plaintiff to receive a windfall. It was, in part, also based on various factual concerns including the fact that a particular agreement was not in itself illegal. Harvey J. concluded that the extent of the illegaility was not nearly as severe as the unjust enrichment that would be faced by the defendant.

Law

In Hall v Hebert, 1993 CanLII 141 (SCC), [1993] 2 SCR 159, the leading cause on ex turpi causa, a plaintif was injured when, while under the influence of alcohol, he lost control of his friend’s car and crashed. The plaintiff sued his friend for giving him permission to drive the car while drunk. The defendant car owner raised the defence of illegality, arguing that the plaintiff’s illegal act of driving while under the influence of alcohol should bar his claim.The Supreme Court canvassed the history of ex turpi causa and whether it was still applicable in modern jurisprudence. Justice McLachlan's majority judgement ultimately held that the defence of illegality was still relevant but should be invoked sparingly and interpreted narrowly:

The narrow principle illustrated by the foregoing examples of accepted application of the maxim of ex turpi causa non oritur actio in tort, is that a plaintiff will not be allowed to profit from his or her wrongdoing. This explanation, while accurate as far as it goes, may not, however, explain fully why courts have rejected claims in these cases. Indeed, it may have the undesirable effect of tempting judges to focus on the issue of whether the plaintiff is "getting something" out of the tort, thus carrying the maxim into the area of compensatory damages where its use has proved so controversial, and has defeated just claims for compensation. A more satisfactory explanation for these cases, I would venture, is that to allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. 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.

[...]

The debate is not purely academic. There are practical reasons for finding that it is proper to view ex turpi causa as a defence. I mention three. If the ex turpi causa principle arises in the course of the investigation into whether there exists a duty of care, the onus will lie on the plaintiff to show why he or she should not be disentitled by way of his or her conduct. It is well established that the plaintiff bears the onus of establishing a valid cause of action; if not, the plaintiff faces non-suit. Thus a plaintiff whose conduct is alleged to be immoral or illegal might be bound to disprove the illegality or immorality in order to proceed with his or her action and avoid non-suit. On the other hand, if the matter is left as a defence, the onus rests on the defendant. As I have indicated, the power to preclude recovery on the basis of the plaintiff's immoral or illegal conduct is an exceptional power, operating in derogation of the general principles of tort applicable to all persons in our society. As such, it seems to me appropriate that the onus of establishing the exceptional circumstances should rest with the defendant. The plaintiff should not be required to disprove the existence and relevance of his or her illegal or immoral conduct; rather it should be for the defendant to establish it.

Accordingly, Justice McLachlan determines that there was an ongoing role for ex turpi causa, albeit one that was limited in scope and focus. This role and the application of the maxim should focus not on the parties but rather on the integrity of the justice system.

I conclude that there is a need in the law of tort for a principle which permits judges to deny recovery to a plaintiff on the ground that to do so would undermine the integrity of the justice system. The power is a limited one. Its use is justified where allowing the plaintiff's claim would introduce inconsistency into the fabric of the law, either by permitting the plaintiff to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law. Its use 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. I turn now to the question of the form in which this principle should be cast.

In the circumstances of the case, she found that the plaintiff driver was not barred by the illegality defence since he was not seeking to recover illegal profit or gain but rather compensation for his personal injuries:

The doctrine of ex turpi causa non oritur actio properly applies in tort where it will be necessary to invoke the doctrine in order to maintain the internal consistency of the law. Most commonly, this concern will arise where a given plaintiff genuinely seeks to profit from his or her illegal conduct, or where the claimed compensation would amount to an evasion of a criminal sanction. This appellant need not be denied recovery since these grounds are not relevant to his claim. The compensation sought by this appellant is for injuries received. This compensation can be reduced to the extent of the appellant's contributory negligence, but cannot be wholly denied by reason of his disreputable or criminal conduct.

In British Columbia v. Zastowny, 2008 SCC 4 (CanLII), [2008] 1 SCR 27, the Supreme Court of Canada had occasion to revisit Hall v Hebert and the role of ex turpi causa. In that case, Mr. Zastowny had been sexually assaulted by a prison guard while in jail. In addition to an award for general and aggravated damages, at trial, he was awarded compensation for past and future lost wages. Justice Rothstein considered the principle and history of ex turpi causa and extracted the rules from Hall v Hebert and the subsequent jurisprudence as follows:

[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.

On appeal to the Supreme Court, recovery for past and future lost wages was denied. The Supreme Court held that to permit recovery on this ground would allow the plaintiff to be indemnified for the consequences of committing the illegal acts for which he was originally imprisoned. Justice Rothstein reasoned that this was a situation where the integrity of the justice system would be compromised since the court would, in essence, be rewarding the plaintiff for conduct that it had previously punished"

[32] Zastowny was serving a lawfully imposed criminal sentence. There should be no distinction between “core time” and “extra time” because Zastowny’s lawfully imposed sentence consisted of both. To award damages for any period of incarceration pursuant to a lawfully imposed sentence would create that conflict between the criminal and civil law which the judicial policy underlying the ex turpi doctrine requires be precluded. In the words of McLachlin J. in Hall v. Hebert, “concern for the integrity of the legal system trumps the concern that the defendant be responsible” (p. 182). It would be inconsistent to incarcerate a person for a criminal offence and then compensate him for the incarceration. Zastowny was serving the sentence imposed for his criminal conduct. He cannot attribute part of his lawfully imposed sentence to someone else in order to obtain a partial rebate of the consequences of his criminal conduct.

In Daemore v. Von Windheim, 2011 BCSC 1523 (CanLII), the British Columbia Supreme Court considered the maxim of ex turpi causa non oritur actio in the context of a family law dispute. The claimant was a lifelong criminal, and both parties and been repeatedly and on an ongoing basis, including in recent years, jointly engaged in various forms of wrongful activity. Voith J. canvassed the principles of the maxim as follows:

[60] I do not consider that there is any merit to any of the disparate claims advanced by Mr. Daemore or Ms. Von Windheim. Each of their respective claims suffers from various deficiencies arising from the application of those legal principles which are relevant to the particular claim. There is, moreover, an overarching impediment to many of these claims. This impediment is the result of the criminality and illegality which pervades most of the claims before me.

[61] The maxim ex turpi causa non oritur actio, generally raised as a defence, but available to the court on its own motion, is directly relevant. The issues engaged by application of the maxim were not raised in the pleadings of the parties. They were raised by me in advance of argument and counsel were provided with a further opportunity to supplement their submissions in writing.

[62] The central principles which animate the ex turpi doctrine are clear and of long standing. In Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159 at 170-171, McLachlin J., as she then was, said:

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.]

The use of the doctrine of ex turpi causa to prevent abuse and misuse of the judicial process is well established in contract law and insurance law, where it provokes little controversy. The same cannot be said for tort. ...

[...]

[64] The courts in this province also recently commented on the doctrine in Randhawa v. 420413 B.C. Ltd., 2007 BCSC 1507, aff’d 2009 BCCA 602, leave to appeal dismissed [2010] S.C.C.A. No. 73. Chiasson J.A., for the court, summarized the central facts as follows:

[7] The trial judge stated at para. 241 she was “satisfied that, from 1994 until at least 2000, Mr. Randhawa initiated and actively participated in the distribution of unrecorded cash from the CVT taxi drivers”. She concluded there was a falling-out among the parties and the most likely scenario was that the appellants ceased to participate in the scheme and the Kang Group continued with it. She held that at some point after 2000 the Kang Group continued to take money from CVT without the appellants’ knowledge or participation but, applying the doctrine of ex turpi causa non oritur actio, the judge refused to award damages to the appellants.

[65] At trial, Madam Justice Allan had said:

[256] However, it is unnecessary to speculate as to the extent of Mr. Randhawa’s involvement after 2000. I am satisfied, on the basis of all of the evidence, that Mr. Randhawa, with the knowledge and acquiescence of his wife, was the architect of the money skimming plan and participated fully until there was a “falling out of thieves” and the entire scheme unravelled.

[257] At some point after 2000, the defendant owners continued to take cash from CVT without Mr. Randhawa’s knowledge or participation. However, the plaintiffs cannot invoke the Court’s assistance to compensate them for their share of the illegal cash taken by the defendants. The doctrine of ex turpi causa non oritur action provides that no action may arise from a base cause. As Phillip H. Osborne stated in The Law of Torts: Torts, (Toronto: Irwin Law, 2000) at 102:

It embodies an intuitive reaction that plaintiffs who are involved in illegal conduct and other serious wrongdoing when they suffer damage should not be permitted to engage the legal system to pursue a remedy...

[258] This principle was illustrated In Pupiec v. Dereniowski et al. (1998), 1998 CanLII 2070 (ON CA), 39 O.R. (3d) 150 (C.A.), where the Court allowed an appeal from a trial judgment in which a plaintiff successfully sued on an illegal contract. The Court said, at 152, that:

This disposition was clearly in error. Having found that Pupiec was a party to this fraud on Ermar, he should have applied the maxim, ex turpi causa non oritur actio (a claim cannot arise from a base cause). In more modern language, a plaintiff who is a willing participant in an illegal or immoral act may not have the assistance of the court if her damages flow from her involvement in the illegal or immoral act: see Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452, 24 C.C.L.T. 111. Once the court finds that the plaintiff and the defendant participated in a scheme to defraud a third party, as this trial judge expressly found, it is wrong to suggest that the court should entertain an action between the participants to the fraud to allocate responsibility for the loss in reverse proportion to their guilt.

[259] Accordingly, having found that the Randhawas participated in the scheme to divert unrecorded cash from CVT for at least six years, they are not entitled to a remedy even though the defendants may have received a greater amount of cash.

[66] The Court of Appeal, in affirming the trial judgment, said:

[26] These cases illustrate the proposition that a trial judge should not decide a case on a legal theory not advanced by a party or make findings of fact not based on evidence. They do not erode the right and obligation of trial judges to consider all of the evidence and to reject or accept all or part of it. Inherent in this right and obligation is the possibility that factual scenarios presented by parties will be accepted or rejected in whole or in part.

...

[45] In my view, the judge did not step “outside of the pleadings and the case as developed by the parties to find liability”. In the circumstances of this case, the judge was entitled to reach a determination of the likely conduct of the parties that did not accord with their direct evidence or positions advanced by them at trial.

...

[66] The ex turpi causa doctrine prevents a party from benefiting from illegaI or immoral conduct (Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [19831 1983 CanLII 23 (SCC), 1 S.C.R. 452). It applies in contract and in tort to maintain the internal consistency of the law (Hall v. Herbert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159 at 185). The justification for the rule is the preservation of the integrity of the legal system; it should be applied sparingIy (British Columbia v. Zastowny, 2008 soc 4, [20081 2008 SCC 4 (CanLII), 1 S.C.R. 27 at para. 20).

[67] The appellants note that ex turpi causa was neither pleaded nor argued. They state the judge misapplied the doctrine because she applied it “without considering its doctrinal or public policy underpinnings, and without the benefit of argument from counsel”.

[68] In my view, it is not necessary to plead the doctrine. It is a question of law. It is necessary to plead the material facts to support the application of the doctrine. In this case that was done (Miller v. Decker, 1955 CanLII 277 (BC CA), [1955] 4 D.L.R. 92 at paras. 18-19 (B.C.C.A.); David Cooper Investments Ltd. v. Bermuda Tavern Ltd. (2001), 2001 CanLII 3639 (ON CA), 56 O.R. (3d) 243 at para. 44 (C.A.)).

[67] The ex turpi doctrine has relevance beyond the insurance, contract, and tort contexts. In C.L.S. (Re), 2009 ABPC 107, J.K. was denied guardianship of V., a child conceived as a result of his sexual assault on the minor child of his common-law partner. One of the reasons given for this denial by Cook-Stanhope, Prov. Ct. J. was related to the fact that the conception of the child was an illegal act:

[51] In addition, V. was born as a result of an illegal act. Courts have consistently ruled that a party should not be entitled to benefit from an illegal act. The Court in Major v. Canadian Pacific Railway, a decision of the Supreme Court of Canada, 1922 CanLII 10 (SCC), [1922] 3 W.W.R. 512; 1922 CarswellOnt 120, quoting Lord Mansfield in Holman v. Johnson, 98 E.R. 1120, ldlington, J. stated:

The principle of public policy is this: ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.

That is but one example of the principle in action. There are many more.

[52] In applying this principle to the present case and to the interpretation of s. 20 of the FLA, it is clear that the illegal act in question is not in connection with a minor or collateral matter, it is the very basis of the existence of a child. Following this argument, I am satisfied that J.K. should not be permitted to benefit from his acts of sexual predation against a minor child under his care.

[53] A further reason to find that J.K. is not a guardian of V. is that if this Court were to acknowledge that guardianship status can flow from cohabitation between sexual perpetrator and minor child in a civil context, such a result would cause the civil law to be applied in a manner totally inconsistent with the criminal law in force in this country.

Justice Voith considered the doctrine of "clean hands" where the cause of action is based on unjust enrichment or constructive trust, both of which are equitable in nature as follows:

[69] Many of the claims brought in matrimonial proceedings rely on causes of action such as unjust enrichment or constructive trust. Both these causes of action are advanced by Mr. Daemore in the instant action. Both causes of action are equitable in nature and consequently "clean hands" principles pertain: John McGhee Q.C. ed., Snell’s Equity, 31st ed. (Sweet and Maxwell Limited: London, 2005) at 5-15.

[70] In BMF Trading v. Abraxis Holdings Ltd., 2002 BCSC 590, re-trial ordered on other grounds 2003 BCCA 559, Madam Justice Garson said:

[110] More importantly, and regardless of alternative remedies, I do not think that good conscience requires that this court should intercede in these circumstances. First, the parties deliberately structured their affairs to insulate themselves from the burdens of ownership and they were cognisant of both the benefits and restrictions of such an arrangement. Now, the partners come to court alleging a relationship to Four Star which directly conflicts with both the documented legal structure created by Simons, Scott and Williams and with the position the partners had taken in an earlier trial. The modern doctrine of constructive trust, which has been created to remedy injustice to innocent or vulnerable parties, is not a device to be utilized by sophisticated business people caught in the web of their own intrigue. Constructive trusts are not to be used as a reward to parties who have gained advantages by denying legal ownership of an asset, only then to assert ownership when it suits them at a later date. This court must not facilitate such manipulation.

[111] That is the reason why this case is distinguishable from the facts in Peter v. Beblow. The essential difference is that, unlike Ms. Peter, Scott and Simons intentionally contrived to separate themselves from the legal ownership of Four Star and its public company shareholdings.

[71] In Bowles v. Beamish, 2008 ABQB 395, a common law husband claimed unjust enrichment against his former common law wife on the basis that properties he transferred to her to protect them from pre-existing child support obligations and to hide them from the trustee in bankruptcy and Canada Revenue Agency, should be returned to him. The unjust enrichment claim was dismissed on the basis that there was no unjust enrichment, as well as on the basis that the husband was not entitled to an equitable remedy:

[44] ... the claim of the respondent to an interest in Ms. Beamish’s asset by way of quantum meruit or constructive trust cannot be sustained. See Scheuerman v Scheuerman (1916), 1916 CanLII 42 (SCC), 52 S.C.R. 625; Goodfriend v. Goodfriend, 1971 CanLII 28 (SCC), [1972] S.C.R. 640; Morgan v. Morgan [1995] O.J. No. 3188 (Gen. Div.). As the Chief Justice of Canada said in Scheuerman at p. 627:

I am prepared to hold that a plaintiff is not entitled to come into Court and ask to be relieved of the consequences of his actions done with intent to violate the law, and that though they did not and even could not succeed in such purpose.

[72] In Stoneman v. Gladman (2005), 2005 CanLII 63796 (ON SC), 16 C.B.R. (5th) 78, 45 C.C.E.L. (3d) 309 (Ont. S.C.J.), the plaintiffs were facing significant financial difficulties. They transferred all their assets to the defendant and declared personal bankruptcy. The defendant was to then gift 50% of their assets back to them, in the form of a new company. The defendant refused and hired Mr. Stoneman as an employee of the new company, but then terminated his employment. The plaintiffs acknowledged that their conduct was “dishonourable and of highly questionable legality” (at para. 8). P. Perell J. said:

[32] There is an alternative ground to stay the plaintiffs’ claims for compensation for the alleged failure to transfer the business assets. Brought by these plaintiffs, this claim is, in my view, an abuse of the process of the court. The legal maxims ex turpi causa non oritur actio and ex dolo malo non oritur actio express the principle that the court will not aid a litigant who founds his or her claim upon an illegal or immoral act. A classic expression of the principle is by Lord Mansfield in Holman v. Johnson (1775), 98 E.R. 1120 (Eng. K.B.) at p. 1121 where he states:

The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant but because they will not lend their aid to such a plaintiff.

[33] In Pupiec v. Dereniowski (1998), 1998 CanLII 2070 (ON CA), 39 O.R. (3d) 150 (Ont. C.A.), the vendor participated in a fraudulent scheme to deceive the mortgagee who was providing first mortgage financing. The vendor was disentitled from enforcing her own mortgages that were received as part payment of the falsely stated purchase price. The court stated that a plaintiff who is a willing participant in an illegal or immoral act may not have the assistance of the court if damages flow from the illegal or immoral act.

[34] In asserting that they should be allowed to advance the claim for compensation for the alleged failure to transfer the business assets, the plaintiffs attempt to take some comfort from the fact that the trustee in bankruptcy has, so far, shown no interest in taking over the claim. I do not see how this assists the plaintiffs. The trustee’s disinterest does not confer legal capacity on the plaintiffs, and unlike the trustee, they remain tainted by their professed acknowledgment that the scheme that they seek to have enforced is dishonourable and illegal.

Justice Voith did not rely on the maxim in his decision. Instead, looking specifically at the apportionment of matrimonial property, Justice Voith considered himself unable to make the necessary determinations due concerns about the credibility of the parties and the lack of reliable evidence from either party:

[117] I have considered the comments of Fraser J. in Cunha v. da Cunha (1994), 1994 CanLII 3195 (BC SC), 99 B.C.L.R. (2d) 93, to the effect that where there has been non-disclosure of assets the court should infer that the non-disclosing party has control and possession of family assets of which the court has no knowledge and rule on that basis. That guidance is of limited assistance in this case. In Cunha, only one of the parties was concealing assets and the court’s primary object or concern was to avoid injustice and unfairness to the innocent party. There was also some accurate information abou

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