HomeFamily LawBring Clean Hands to Court – Not Just Because of Covid!

Bring Clean Hands to Court – Not Just Because of Covid!

We are all by now very used to making sure our hands are clean, literally, but did you know there is “Clean Hand Doctrine” in court, wherein a litigant should come to court with figurative clean hands?

In a recently released decision, Vestby v Galloway, 2020 ABQB 361 [Vestby], the Alberta Court of King’s Bench reviewed the doctrine of clean hands in a divorce lawsuit.  The doctrine states that “he who comes to equity must come with clean hands” (Mayer v Osborne Contracting Ltd, 2012 BCCA 77 at para 85; Vestby, para 109).  As Vestby explains at para 111:

The public policy underlying the doctrine seeks to prevent claimants from deriving advantage from their own unconscionable or otherwise wrongful conduct, and guards against rewarding claimants who have materially misled the court, abused the court’s process or attempt to do so: KGH v SLV, 2013 ABQB 326 at para 48.

However, the entirety of a litigant’s behavior is not subject to this principle, meaning even if one has done something wrong in the past, the clean hands doctrine does not necessarily apply – the principle is applied only to “the circle of behavior related to the relief sought” (Vestby at para 112; Wang v Wang, 2020 BCCA 15 at para 46).  Thus, there should be a direct and close relation to the wrongful behavior and the relief then sought.  For example, if a litigant has substantially breached a no-contact order and harassed someone whom she/he was barred from having contact with, that person should not then be able to seek a remedy in court requesting a restraining order against the same person.  Another example may be if a litigant fraudulently swore about his/her level of income in an affidavit and the court made an order providing him/her support based on that misrepresented income, that litigant should not be allowed to come back to Court and ask that the Court enforce remedies against the non-payment of the support.

However, even if a litigant has engaged in wrongful or illegal actions, this specific doctrine may not apply to the specific lawsuit.  In Vestby, even though the husband was paying cash for good and services to avoid GST, he was still entitled to a proprietary remedy.  The Court found at para 125, “Moreover, even if misconduct had been established, I would have found that the misconduct did not have an “immediate and necessary” relation to the equity for which he sued. Kirby suffered a detriment based on the money and labour he actually expended on the Blue House, not the GST he purportedly avoided. He therefore proved the proprietary estoppel without relying on the impugned conduct.”

In a 2020 British Columbia Court of Appeal case, Wang v Wang, 2020 BCCA 15, the Court also reviewed this doctrine.  At para 46, the Court quoted the following:

In DeJesus v. Sharif2010 BCCA 121 at para. 85, Chief Justice Finch adopted this passage from Snell’s Equity, 30th ed. (London: Sweet & Maxwell, 2000) at 32:

The maxim … must not be taken too widely; ‘Equity does not demand that its suitors shall have led blameless lives.’ What bars the claim is not a general depravity but one which has ‘an immediate and necessary relation to the equity sued for,’ and is not balanced by any mitigating factors.

He adopted, also, this statement from The Principles of Equitable Remedies, 6th ed. (UK: Sweet & Maxwell, 2001) at 169–170:

… it must be shown, in order to justify a refusal of relief, that there is such an “immediate and necessary relation” between the relief sought and the delinquent behaviour in question that it would be unjust to grant that particular relief. … So it was once emphasised “that general fraudulent conduct signifies nothing; that general dishonesty of purpose signifies nothing; that attempts to overreach go for nothing; that an intention and design to deceive may go for nothing, unless all this dishonesty of purpose, all this fraud, all this intention and design, can be connected with the particular transaction, and not only connected with the particular transaction, but must be made to be the very ground upon which the transaction took place, and must have given rise to this

It remains imperative and expected that a litigant is honest during the law suit, and free of misrepresentation, deceit and/or fraudulent activity.  So, during Covid-19, and a lawsuit, make sure your hands are clean!

2022-09-12T16:37:05+00:00April 13, 2021|Family Law|
Go to Top