Case information

Trusts — Breach of trust — Action for breach of trust — Application to strike defence of ex turpi causa — Whether the immoral or illegal action of a plaintiff, which occurs after the crystallisation of a cause of action advanced by a plaintiff, can ever support a plea of ex turpi causa by the defendants — What are the threshold requirements of causal connection of a plaintiff’s illegal or immoral conduct to a cause of action, necessary to support a defendant’s plea of ex turpi causa? — Whether the Court of Appeal erred in law by not properly considering and properly addressing a correct legal analysis to strike a pleading of the ex turpi causa defence, and by concluding that such defence was bound to fail — Whether the Court of Appeal erred in law by failing to address the foundational precept of the common law, and the possibility of incremental and principled expansions to common law authority, such that in certain circumstances, illegal or immoral actions subsequent to the formation of a cause of action may ground the ex turpi causa defence.

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The respondent, Sung Oh Bang, is the plaintiff in a breach of trust claim filed against the applicants, Mi Kyung Kim (his aunt) and Myungsook Lim (his grandmother). The respondent alleged that a trust was established in his favour into which were deposited considerable funds that have since been entirely, and wrongly, dissipated. The trustees of the trust were the respondent’s aunt (who was allegedly assisted by his grandmother), as well as his deceased mother. According to the applicants, once the respondent learned that the funds had been dissipated, he began harassing them, as well as his mother. The applicants claimed that the respondent’s mother committed suicide as a result of the abuse. The applicants filed a response to the breach of trust claim that was subsequently amended to include allegations of harassment. The respondent filed an application seeking to strike several defences advanced in the amended response, one being the defence of ex turpi causa non oritur actio where the applicants claimed that the respondent was not entitled to recover damages because he had caused his mother to commit suicide thereby removing her as a witness. The Supreme Court of British Columbia declined to strike the defence finding it was not plain and obvious it would fail. The Court of Appeal for British Columbia found that the defence had no prospect of success and struck it from the amended response.