Norberg v. Wynrib

Norberg v. Wynrib
Collection
Supreme Court Judgments
Date
1992-06-18
Report
[1992] 2 SCR 226
Case number
21924
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William
On appeal from
British Columbia
Subjects
Contract
Torts
Trust
Notes
SCC Case Information: 21924
Decision Content
Norberg v. Wynrib, [1992] 2 S.C.R. 226
Laura Norberg Appellant
v.
Morris Wynrib Respondent
and
Women's Legal Education and Action Fund Intervener
Indexed as: Norberg v. Wynrib
File No.: 21924.
1991: June 19; 1992: June 18.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson* JJ.
on appeal from the court of appeal for british columbia
Torts ‑‑ Battery ‑‑ Defences ‑‑ Consent ‑‑ Doctor‑patient relationship ‑‑ Patient addicted to prescription drug ‑‑ Doctor suggesting sex‑for‑drugs arrangement ‑‑ Patient acquiescing to obtain drugs ‑‑ Whether patient's consent a defence to battery ‑‑ Whether action barred by reason of illegality or immorality ‑‑ Determination of damages.
Contracts ‑‑ Doctor‑patient relationship ‑‑ Patient addicted to prescription drug ‑‑ Doctor suggesting sex‑for‑drugs arrangement ‑‑ Patient acquiescing to obtain drugs ‑‑ Whether breach of contract.
Trusts ‑‑ Fiduciary duty ‑‑ Doctor‑patient relationship ‑‑ Patient addicted to prescription drug ‑‑ Doctor suggesting sex‑for‑drugs arrangement ‑‑ Patient acquiescing to obtain drugs ‑‑ Whether fiduciary relationship ‑‑ If so, whether breach of relationship.
Appellant became addicted to pain killers, and to one addictive drug in particular. She obtained the drugs from various doctors and from her sister. Eventually she began seeing the respondent, an elderly medical practitioner and, using several pretexts, obtained prescriptions for pain killers from him. At some point during this period, respondent confronted appellant about her drug usage and she admitted that she was addicted. He then made suggestions of a sexual nature by pointing upstairs where his apartment was located. Appellant then obtained the drug from other doctors but, when they reduced her supply, sought out respondent and gave in to his demands. Several instances of fondling and simulated intercourse occurred over the course of more than a year. After a time, appellant told respondent that she needed help with her addiction. Respondent advised appellant to "just quit". Appellant became the subject of a criminal investigation and respondent ceased giving her prescriptions but continued to give her pills after her visits upstairs. After being charged with "double doctoring" ‑‑ obtaining narcotic prescription drugs from a doctor without disclosing particulars of prescriptions from other doctors ‑‑ appellant went to a rehabilitation centre on her own initiative.
Appellant sought general and punitive damages against the respondent on the grounds of sexual assault, negligence, breach of fiduciary duty and breach of contract. At trial, appellant admitted that respondent did not at any time use physical force. She also testified that he did things for her, that she "played" on the fact that he liked her and that she knew throughout the relationship that he was lonely. The action was dismissed at trial and on appeal.
At issue here was whether appellant should be allowed to recover damages.
Held: The appeal should be allowed.
Per La Forest, Gonthier and Cory JJ.: The sexual assault alleged here fell under the tort of battery ‑‑ the intentional infliction of unlawful force on another person. One defence to this tort is consent, express or implied. It has long been held that consent will be vitiated where it is obtained by force or threat of force, by fraud or deceit as to the nature of the defendant's conduct, or where it is given under the influence of drugs. The vitiating factors, however, are not limited to these. The concept of consent as it operates in tort law is based on a presumption of individual autonomy and free will. In some circumstances, a position of relative weakness can interfere with the freedom of a person's will. Accordingly, our notion of consent must involve an appreciation of the power relationship between the parties.
In certain circumstances, consent will be considered to be legally ineffective if it can be shown that there was such a disparity in the relative positions of the parties that the weaker party was not in a position to choose freely. Ordinarily, a special "power dependency" relationship will be required. The existence of one of these special relationships, however, is not necessarily determinative of an overwhelming power imbalance. The factual context of each case must be evaluated to determine if there has been legally effective consent. The doctrine of unconscionability used to address the issue of voluntariness in contract law provides insight into the issue of consent in tort law which, to be genuine, must be voluntary.
In "power dependency" relationships, a two‑step process is involved in determining whether or not there has been legally effective consent to a sexual assault. An inequality between the parties must first be proved, and then exploitation. A consideration of the type of relationship at issue may provide a strong indication of exploitation. Community standards of conduct may also be of some assistance.
There was a marked inequality in the respective powers of the parties here. The appellant was addicted to the heavy use of tranquilizers and pain killers. Her drug dependence placed her in a vulnerable position and diminished her ability to make a real choice.
An unequal distribution of power is frequently a part of the doctor-patient relationship. The respondent's medical knowledge and knowledge of the appellant's addiction, combined with his authority to prescribe drugs, gave him power over her. The second step of exploitation was also satisfied. The respondent abused his power over the appellant and exploited the information he obtained concerning her weakness to pursue his own personal interests. The sex‑for‑drugs relationship was markedly divergent from what the community would consider acceptable.
Respondent's assertions of compassion and interest in appellant's well‑being did not square with his flagrant disregard for her need for treatment. If he were truly interested in her well‑being, he would have helped her overcome her addiction. The argument that appellant took advantage of an old and lonely doctor would have had more credence had appellant initiated the sex‑for‑drugs arrangement.
The principle of ex turpi causa non oritur actio did not apply so as to bar the appellant's recovery for damages. To apply this doctrine would be to deny the appellant's claim on the same basis that she succeeded in the tort action: because she acted out of her desperation for the addictive drug. Public policy would not countenance giving to the appellant with one hand and then taking away with the other. The offence of "double‑doctoring" was irrelevant here because no causative link existed between the injury and the crime. The appellant, if she had been relying on the respondent alone for her drug supply rather than "double‑doctoring", would have suffered the same harm.
The tort of battery is actionable without proof of damage and liability is not confined to foreseeable consequences. Aggravated damages, where general damages are assessed taking into account any aggravating features of the case, may be awarded if the battery has occurred in humiliating or undignified circumstances. These must be distinguished from punitive or exemplary damages which are awarded to punish the defendant and make an example of him or her to deter others from committing the same tort. Here the appellant was entitled to aggravated damages for the indignity of the sexual assault. Respondent's conduct merited condemnation by the court. Although not harsh, vindictive or malicious, it was nevertheless reprehensible and it offended the ordinary standards of decent conduct in the community. Further, the exchange of drugs for sex by a doctor in a position of power is conduct that cries out for deterrence and an award of punitive damages was accordingly appropriate.
Per L'Heureux‑Dubé and McLachlin JJ.: The fiduciary duty which existed here was breached. The plaintiff was entitled to recover the appropriate damages at equity.
The doctor‑patient relationship can be conceptualized as a creature of contract or of tort but its most fundamental characteristic, rooted in the trust inherent in the relationship, is its fiduciary nature. The foundation and ambit of the fiduciary obligation are conceptually distinct from the foundation and ambit of contract and tort. In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self‑interest. Consequently, the law seeks a balance between enforcing obligations by awarding compensation when those obligations are breached, and preserving optimum freedom for those involved in the relationship in question. The essence of a fiduciary relationship, by contrast, is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other. When breach occurs, the balance favours the person wronged.
A fiduciary relationship is marked by the following characteristics: (1) the fiduciary has scope for the exercise of some discretion or power; (2) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests; and (3) the beneficiary is peculiarly vulnerable or at the mercy of the fiduciary holding the discretion or power. A physician owes his or her patient the classic duties associated with a fiduciary relationship ‑‑ "loyalty, good faith, and avoidance of conflict of duty and self‑interest".
That one party in a fiduciary relationship holds power over the other is not in and of itself wrong. Wrong occurs, however, if the risk inherent in entrusting the fiduciary with such power is realized and the fiduciary abuses the power entrusted to him or her.
A fiduciary duty arises because that power or discretion may be used to affect the beneficiary in a damaging way. Fiduciary duties are not confined to the exercise of power which can affect the legal interests of the beneficiary, but extend to the beneficiary's "vital non‑legal or `practical' interests". Fiduciary obligation is not confined to legal rights such as confidentiality and conflict of interest and undue influence in the business sphere. Here, societal and personal interests which are vital and substantial are being protected, and not what have been traditionally regarded as legal interests.
The third requirement is that of vulnerability. The beneficiary of a fiduciary relationship need not be per se vulnerable. It is only where there is a material discrepancy, in the circumstances of the relationship in question, between the power of one person and the vulnerability of the other that the fiduciary relationship is recognized by the law. Where the parties are on a relatively equal footing, contract and tort provide the appropriate analysis.
The doctrine applied notwithstanding a number of alleged conditions of defeasibility.
The short answer to the arguments based on wrongful conduct of the plaintiff is that she did nothing wrong in the context of this relationship. She was not a sinner, but a sick person, suffering from an addiction which proved to be uncontrollable in the absence of a professional drug rehabilitation program. The law might accuse the plaintiff of "double doctoring" and moralists might accuse her of licentiousness; but she did no wrong because not she but the doctor was responsible for this conduct. He had the power to cure her of her addiction, as her successful treatment after leaving his "care" demonstrated, but instead chose to use his power to keep her in her addicted state and to use her for his own sexual purposes. An application of the clean hands maxim here amounts to nothing more than "blaming the victim".
Treating this case on the basis of breach of fiduciary duty adds a great deal, besides perhaps a duty of confidence and non‑disclosure, to an action in tort or contract. The scope of the fiduciary obligation is not narrowly confined to matters akin to the duty not to disclose confidential information. Fiduciary obligations "must be reserved for situations that are truly in need of the special protection that equity affords", and the situation here is precisely one that is "truly in need of the special protection that equity affords". Given that the principles apply here to protect the plaintiff's interest in receiving medical care free of exploitation at the hands of her physician, the consequences are most significant. The defences based on the alleged fault of the plaintiff, so pressing in tort, may carry little weight when raised against the beneficiary of a fiduciary relationship. Equity has always held trustees strictly accountable in a way the tort of negligence and contract have not. Foreseeability of loss is not a factor in equitable damages. Certain defences, such as mitigation, may not apply.
Viewing the relationship at issue here as fiduciary will not open the floodgates to unfounded claims based on the abuse of real or perceived inequality of power. The ambit of the fiduciary obligation must be defined in a way that encompasses meritorious claims while excluding those without merit. The prospect of the law's recognizing meritorious claims by the powerless and exploited against the powerful and exploitive should not alone serve as a reason for denying just claims.
Damages should be assessed according to the principles which generally govern damages for breach of fiduciary duty, keeping in mind that the remedy awarded need not be confined to that given in previous situations if the requirements of fairness and justice demand more, and that reference to the principles of assessment in contract and tort may be of assistance in so far as they are relevant. The goal of equity is to restore the plaintiff as fully as possible to the position he or she would have been in had the equitable breach not occurred. Where the traditional equitable remedies of restitution and account are not available, equity awards compensation in their stead. In awarding damages the same generous, restorative remedial approach, which stems from the nature of the obligation in equity, applies. The fiduciary, being the person with the advantage of power, assumes full responsibility and cannot be heard to complain that the victim of his or her abuse cooperated in his or her defalcation or failed to take reasonable care for his or her own interests.
Punitive damages were appropriate here.
Per Sopinka J.: Consent, either express or implied by conduct, is a defence to a claim of battery. Consent must be genuine and cannot be obtained by force, duress, or fraud or deceit as to the nature of the defendant's conduct, or under the influence of drugs. The factors relating to consent must be applied on a case‑by‑case basis rather than by the establishment of categories of individuals or relationships where apparent consent will never or rarely be considered valid. Certain relationships, particularly those in which there is a significant imbalance in power or those involving a high degree of trust and confidence, may require the trier of fact to be particularly careful in assessing the reality of consent.
The sexual contact, although clearly against appellant's wishes, was not without her consent. Her addiction, while it clearly inspired her willingness to engage in sexual activity, did not interfere with her ability to reason or her capacity to consent to the sexual activity which took place. The doctor did not exercise such control or authority that her submission could not be considered genuine consent. Indeed, appellant admitted to playing on respondent's loneliness. There is no basis on which to set aside the conclusion of the courts below on the issue of consent.
There is a fundamental difference between the issue of consent in tort law and the doctrine of unconscionability. The weight of academic and judicial opinion is that the doctrine of unconscionability operates to set aside transactions even though there may have been consent or agreement to the terms of the bargain. It is not that this doctrine vitiates consent; rather fairness requires that the transaction be set aside notwithstanding consent. The doctrine of unconscionability and the related principle of inequality of bargaining power are still evolving and are not yet completely settled areas of contract law. Importing the principles of unconscionability into the context of a battery claim has the potential to obscure the real question of whether, in all the circumstances, the plaintiff actually consented to the touching which constituted the alleged battery. The facts of this case are more accurately reflected by acknowledging that the appellant consented to the sexual contact and by considering the respondent's conduct in light of his professional duty towards the appellant.
Respondent's professional duty arose out of the doctor‑patient relationship which is essentially based in contract. Breach, however, can be subject to action in either contract or tort. While certain obligations that arise from a doctor‑patient relationship are fiduciary in nature, other obligations are contractual or based on the neighbourhood principle which underlies the law of negligence. Fiduciary duties should not be superimposed on common law duties. Whether the appellant relies on contract or negligence, the duty to treat was not vacated by consent. The abandonment of the contractual relationship between the parties required their mutual consent supported by consideration. The doctor‑patient relationship here, notwithstanding any relationship independent of it, continued and was not abandoned. Neither the parties nor the medical community had any reason to believe that the parties had mutually abandoned their contract. Even if the contract were ended, the duty subsisted independently and formed the basis of the action in tort.
The plaintiff's consent to the defendant's conduct did not excuse the defendant from the obligations of his duty. He owed a professional responsibility both to the plaintiff and to the state not to mistreat her in a medical way by extending her period of addiction without proper treatment regardless of her wishes. Absent a clear statement by the respondent to the appellant that he was no longer treating her as her physician and an unequivocal consent to the cessation of treatment, the duty to treat the appellant continued until she attended at the rehabilitation centre on her own initiative and was treated.
The appellant's claim was not barred by ex turpi. Its application to defeat a tort action has been rare. Emphasis is now placed on preserving the administration of justice from the taint that would result from the approval of a transaction that a court ought not to countenance.
The sexual acts were causally connected to the failure to treat and must form part of the damage suffered by the appellant. Punitive damages, however, should not be awarded because the basis of liability is the breach of professional duty. While the sexual episodes are an element of damage, they are not the basis of liability.
Cases Cited
By La Forest J.
Considered: R. v. Jobidon, [1991] 2 S.C.R. 714; W.(B.) v. Mellor, [1989] B.C.J. No. 1393 (QL Systems); Lyth v. Dagg (1988), 46 C.C.L.T. 25; referred to: Morrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710; Lloyds Bank Ltd. v. Bundy, [1975] Q.B. 326; Waters v. Donnelly (1884), 9 O.R. 391; R. v. Lock (1872), L.R. 2 C.C.R. 10; Harry v. Kreutziger (1978), 9 B.C.L.R. 166; Black v. Wilcox (1976), 70 D.L.R. (3d) 192; Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452; N. (J.L.) v. L. (A.M.) (1988), 47 C.C.L.T. 65; Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085; R. v. McCraw, [1991] 3 S.C.R. 72; Stewart v. Stonehouse, [1926] 2 D.L.R. 683; Glendale v. Drozdzik, [1990] B.C.W.L.D. 1839; Q. v. Minto Management Ltd. (1985), 15 D.L.R. (4th) 581; Harder v. Brown (1989), 50 C.C.L.T. 85; Myers v. Haroldson, [1989] 3 W.W.R. 604.
By McLachlin J.
Considered: Frame v. Smith, [1987] 2 S.C.R. 99; referred to: McInerney v. MacDonald, [1992] 2 S.C.R. 138; Canadian Aero Service Ltd. v. O'Malley, [1974] S.C.R. 592; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534; Reading v. Attorney‑General, [1951] A.C. 507; College of Physicians and Surgeons of Ontario v. Gillen (1990), 1 O.R. (3d) 710; Mazza v. Huffaker, 300 S.E.2d 833 (1983); Lloyds Bank Ltd. v. Bundy, [1975] Q.B. 326; Guerin v. The Queen, [1984] 2 S.C.R. 335; Pettkus v. Becker, [1980] 2 S.C.R. 834; R. v. Lavallee, [1990] 1 S.C.R. 852; Harder v. Brown (1989), 50 C.C.L.T. 85; Myers v. Haroldson, [1989] 3 W.W.R. 604; W.(B.) v. Mellor, [1989] B.C.J. No. 1393 (QL Systems); Szarfer v. Chodos (1986), 54 O.R. (2d) 663.
By Sopinka J.
Referred to: Reibl v. Hughes, [1980] 2 S.C.R. 880; Morrow v. Hôpital Royal Victoria (1989), 3 C.C.L.T. (2d) 87; Cowan v. Brushett (1990), 3 C.C.L.T. (2d) 195; Freeman v. Home Office, [1984] 1 All E.R. 1036; Lyth v. Dagg (1988), 46 C.C.L.T. 25; Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426; Morrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710; Davidson v. Three Spruces Realty Ltd. (1977), 79 D.L.R. (3d) 481; Harry v. Kreutziger (1978), 95 D.L.R. (3d) 231; Lloyds Bank Ltd. v. Bundy, [1975] Q.B. 326; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Girardet v. Crease & Co. (1987), 11 B.C.L.R. (2d) 361; Mack v. Enns (1981), 30 B.C.L.R. 337; Hegarty v. Shine (1878), 4 L.R. Ir. 288.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, s. 265(1) , (2) , (3) (a), (b), (c), (d), 244(3) .
Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 3.1(1) [ad. 1985, c. 19, s. 198].
Authors Cited
American Law Institute. Restatement of the Law, Second, Torts (2d), vol. 4.
St. Paul, Minn.: American Law Institute Publishers, 1965‑79.
Boyle, Christine and David R. Percy. Contracts: Cases and Commentaries, 4th ed. Toronto: Carswell, 1989.
Coleman, Phyllis. "Sex in Power Dependency Relationships: Taking Unfair Advantage of the `Fair' Sex" (1988), 53 Alb. L. Rev. 95.
College of Physicians and Surgeons of Ontario. Task Force on Sexual Abuse of Patients. The Final Report of the Task Force on Sexual Abuse of Patients. Toronto: College of Physicians and Surgeons of Ontario, 1991.
Cope, Malcolm. "The Review of Unconscionable Bargains in Equity" (1983), 57 Aust. L.J. 279.
Dorland, William Alexander Newman. Dorland's Illustrated Medical Dictionary, 27th ed. Philadelphia: Saunders, 1988.
Ellis, Mark Vincent. Fiduciary Duties in Canada. Don Mills, Ont.: Richard DeBoo, 1988.
Feldman‑Summers, Shirley. "Sexual Contact in Fiduciary Relationships", in Glen O. Gabbard, ed. Sexual Exploitation in Professional Relationships. Washington, D.C.: American Psychiatric Press, 1989.
Fleming, John G. The Law of Torts, 7th ed. Sydney: Law Book Co., 1987.
Frankel, Tamar. "Fiduciary Law" (1983), 71 Calif. L. Rev. 795.
Grand dictionnaire encyclopédique médical, vol. 1. Paris, 1986.
Jorgenson, Linda and Rebecca M. Randles. "Time Out: The Statute of Limitations and Fiduciary Theory in Psychotherapist Sexual Misconduct Cases" (1991), 44 Okla. L. Rev. 181.
Klippert, George B. Unjust Enrichment. Toronto: Butterworths, 1983.
Linden, Allen M. Canadian Tort Law, 4th ed. Toronto: Butterworths, 1988.
Maddaugh, Peter D. and John D. McCamus. The Law of Restitution. Aurora, Ont.: Butterworths, 1990.
Salmond, John William, Sir. Salmond and Heuston on the Law of Torts, 19th ed. By R. F. V. Heuston and R. A. Buckley. London: Sweet & Maxwell, 1987.
Waddams, S. M. "Unconscionability in Contracts" (1976), 39 Mod. L. Rev. 369.
Waters, Donovan. "Banks, Fiduciary Obligations and Unconscionable Transactions" (1986), 65 Can. Bar Rev. 37.
Wilford, Bonnie Baird. Drug Abuse, A Guide for the Primary Care Physician. Chicago: American Medical Association, 1981.
APPEAL from a judgment of the British Columbia Court of Appeal (1990), 44 B.C.L.R. (2d) 47, 66 D.L.R. (4th) 553, [1990] 4 W.W.R. 193, dismissing an appeal from a judgment of Oppal J. (1988), 27 B.C.L.R. (2d) 240, 50 D.L.R. (4th) 167, [1988] 6 W.W.R. 305, 44 C.C.L.T. 184, dismissing the action. Appeal allowed.
J. J. Camp, Q.C., and Patrick Foy, for the appellant.
I. E. Epstein, for the respondent.
Victoria Gray, for the intervener.
//La Forest J.//
The judgment of La Forest, Gonthier and Cory JJ. was delivered by
La Forest J. -- This case concerns the civil liability of a doctor who gave drugs to a chemically dependent woman patient in exchange for sexual contact. The central issue is whether the defence of consent can be raised against the intentional tort of battery in such circumstances. The case also raises the issue whether the action is barred by reason of illegality or immorality.
Facts
In 1978, the appellant, then a modestly educated young woman in her late teens, began to experience severe headaches and pains in her jaw. She went to doctors and dentists but none of them could diagnose the cause of her excruciating pain. They prescribed various types of painkillers. However, the medication provided no relief. The headaches became worse. More and more medication was prescribed in increasing amounts and dosages. In addition to this medication, her sister, a drug addict, gave her Fiorinal, a painkiller drug. Finally in December 1978, a dentist diagnosed her difficulty as being related to an abscessed tooth. It was extracted and at last her pain was relieved.
But now the appellant had a new problem. She had a craving for painkillers. Her sister gave her more Fiorinal. In 1981, when she broke her ankle, she found a doctor who was willing to prescribe Fiorinal for her. She continued to obtain prescriptions from him until he retired. However, his replacement refused to give her more pills. She discussed the situation with her sister and in March 1982 she commenced to see Dr. Wynrib, an elderly medical practitioner in his seventies. She told him she was experiencing pain in the ankle she had broken in 1981 and asked for Fiorinal. He gave her the prescription. She kept going back to him using the ankle injury and other illnesses as a pretext for obtaining prescriptions. Her dependence on Fiorinal continued to increase as did her dependence on Dr. Wynrib. But the pretext could not continue. Later in 1982, Dr. Wynrib confronted the appellant. The appellant described this confrontation as follows:
I had gone into his office one day and I asked him ‑‑ I asked him for a prescription of Fiorinal, and I remember that he sat back in his chair and he pulled out like the medical file and he looked at me and he asked me come on, Laura, why is the real reason you're taking the Fiorinal. I told him because it's for my back or my ankle, whatever it was that I had been asking him for, and he said ‑‑ no he said. And he looked again over my file. He said you can't be taking them for this long and not be addicted to them. Why is the real reason. And I denied it again. I said it's for the pain. And he told me that if I didn't admit to him that I was addicted to the Fiorinal that he wouldn't give me any more prescriptions. And I remember that I had started crying and I had denied [sic] to him, and he had told me to leave the office. And I wouldn't leave the office and finally I admitted to him that I was addicted to the Fiorinal.
Dr. Wynrib responded by giving the appellant another prescription.
After the appellant admitted to Dr. Wynrib that she was addicted to Fiorinal, she testified that he told her that "if I was good to him he would be good to me" and he made suggestions by pointing upstairs where he lived above his office. The appellant recognized this for what it was and sought her drugs elsewhere. She managed to secure Fiorinal through other doctors and by buying them off the street. Her tolerance and dependence grew. Eventually the other doctors reduced her supply. She was, as she put it, desperate. Near the end of 1983 she went back to Dr. Wynrib because she knew he would give her Fiorinal. She gave in to his demands.
Initially the sexual encounters took place in the back examination room of his office. He kissed her and fondled her breasts. In time, he required her to meet him upstairs in his bedroom where he kept a bottle of Fiorinal in his dresser drawer beside the bed. She managed to stall him for awhile by asking for the Fiorinal first and then leaving after she obtained it. But this device did not work long. Dr. Wynrib told her that he would not give her the Fiorinal until she complied with his demands. The pattern was that he would tell her to undress and put the bottle of Fiorinal by his bed for her to see. Both parties would lie on the bed. Dr. Wynrib would kiss the appellant, touch her and then get on top of her. He would go through the motions of intercourse. There was no penetration, however, because he could not sustain an erection. On at least one occasion, however, he penetrated her with his fingers. He would give her pills each time she visited him in his apartment. She then would go back to his office the next day and he would write out a prescription. When the encounters began, the appellant did not want to believe what was happening. She thought he would do it once and then stop. However, the appellant testified that these incidences of simulated intercourse occurred 10 or 12 times, up to the early part of 1985.
During this period, the appellant was obtaining Fiorinal from a number of other sources: other doctors, off the street and from her sister. In February 1985, she left her job. She became depressed and no longer had the money to buy the drugs she needed off the street. She told Dr. Wynrib that she needed help. Her evidence at trial was:
A.. . . I remember telling him that I needed help, and he told me to just quit. He said just quit. I said I can't. The pills were on my mind all the time.
Q.Did he direct you anywhere else apart from telling you to quit, giving you advice?
A.No, no.
At some point in 1985, the appellant became the subject of a criminal investigation leading the RCMP to visit Dr. Wynrib in April 1985. After this visit, Dr. Wynrib told the appellant that he could no longer give her prescriptions in the office. However, he still gave her pills from the bottle in his dresser drawer when she visited him upstairs. Eventually, she was charged with the summary conviction offence of "double doctoring" under s. 3.1(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as am. by S.C. 1985, c. 19, s. 198, i.e., obtaining narcotic prescription drugs from a doctor without disclosing particulars of prescriptions from other doctors. In July 1985, she went to a rehabilitation centre for drug addicts on her own initiative. She left the centre after one month and has not taken any drugs for non-medical reasons since. In September 1985, the appellant pleaded guilty to the offences for which she was charged and received an absolute discharge.
At trial, the respondent did not testify. However, the appellant admitted that Dr. Wynrib did not at any time use physical force. She also testified that he did things for her such as giving her money as well as coffee and cookies. She agreed that she "played" on the fact that he liked her and that she knew throughout the relationship that he was lonely.
The appellant continues to attend Narcotics Anonymous and other similar programs. She has done volunteer work at the crisis and counselling centre in the area where she lives and has completed credits towards a social worker program. Her hope is to work in the area of drug rehabilitation. She daily thinks with shame and remorse about what happened with Dr. Wynrib. She returned to the rehabilitation centre for more treatment after her first child was born. She felt that she did not deserve to have a child because of what she had done with Dr. Wynrib. Her craving for drugs continues but she has learned to live without them.
Judicial History
Supreme Court of British Columbia (1988), 27 B.C.L.R. (2d) 240
At trial, the appellant sought general and punitive damages against the respondent on the grounds of sexual assault, negligence and breach of fiduciary duty.
The trial judge, Oppal J., rejected the appellant's claim of sexual assault holding that she had consented to it. At page 244, he stated:
By apparently voluntarily submitting to the doctor's advances on the various occasions, the plaintiff gave her implied consent to the sexual contact that constitutes the alleged battery. She obviously had deep misgivings about engaging in this conduct with the defendant. Clearly, she did not wish to do so. However, at no time did she express her feelings to the defendant that she did not wish to engage in sexual activities with him. In fact she went along with his demands.
Oppal J. recognized that for consent to be genuine, it must not be extorted by force or threats of force, or be obtained from an individual under the influence of drugs, but he held that these factors were not present in this case. The respondent did not exercise or threaten to use force, and there was no evidence that the appellant's addiction interfered with her capacity to consent to the sexual activity or with her ability to reason.
Oppal J. next considered the appellant's claim that the respondent was professionally negligent in continuing to prescribe Fiorinal to her. He held that the respondent's continued prescribing of Fiorinal to a known addict breached the standard of care required by law. However, since the appellant was not physically injured by this conduct, her action in negligence failed.
With respect to the appellant's claim that the respondent breached his fiduciary duty by engaging in sexual relations with her and by continuing to prescribe Fiorinal, Oppal J. held, at p. 246:
A relationship between a physician and a patient is one in which trust and confidence must be placed in the physician. Clearly, in the case at bar, the doctor breached a duty which was owed to his patient and, in the ordinary course of events, she should be entitled to damages.
Oppal J., however, went on to find that the defence of ex turpi causa non oritur actio was available to the respondent. In this case, both parties voluntarily participated in an illicit relationship. Any injury the appellant sustained was a direct, natural consequence of her illegal and immoral acts.
The action was accordingly dismissed, and the appellant appealed to the Court of Appeal.
Court of Appeal (1990), 44 B.C.L.R. (2d) 47
The majority of the Court of Appeal, McEachern C.J. and Gibbs J.A., accepted, at p. 244, the trial judge's finding that the appellant "gave her implied consent to the sexual contact that constitutes the alleged battery" and that there was no evidence that her addiction to Fiorinal interfered with her capacity to consent to the sexual activity. It further agreed that the appellant was not at any time deprived of her ability to reason. In the majority's view, Oppal J. was correct in dismissing the appellant's sexual assault claim on the basis of consent.
The majority rejected, as well, the appellant's claim of breach of fiduciary duty. McEachern C.J. set forth his view in this way, at p. 52:
If the defendant breached a duty to the plaintiff in this case it was a breach of the duty which a physician owes to his patient to treat her professionally and, unless the breach relates to an improper disclosure of confidential information or something like that, it adds nothing to describe the breach as a fiduciary one.
With respect to the appellant's claim in negligence, McEachern C.J. noted that Oppal J. found that the respondent had breached his professional duty to the appellant. He agreed with this finding and further found that the physical harm done by the appellant's continued addiction was sufficient to support a cause of action. However, he held that the compensable period would only begin at the date the respondent became aware of her addiction, and damages would be reduced to account for the other drug sources and the appellant's own contributory negligence as a "knowing participant in her own misfortune".
At all events, the majority concluded that Oppal J. was correct in applying the principle ex turpi causa non oritur actio to bar the appellant's right to recover damages. McEachern C.J. stated, at p. 54:
In my view, the plaintiff and defendant in this case were both engaged in a joint or common criminal enterprise to traffic unlawfully in a prohibited drug at least from the end of 1983. Since I have already found that the plaintiff is nevertheless entitled to proper medical treatment from the defendant, this removes at least one branch from the ex turpi principle, that is that participants in a joint criminal activity do not owe a duty of care to each other.
That, however, does not exclude the other ground, namely that the court's assistance will not be furnished to a plaintiff who seeks damages for injuries resulting from illegal and immoral activity or out of an arrangement or transaction which had as one of its incidents an illegal or immoral consideration. The court, as Lord Mansfield said, will not lend its aid to such a plaintiff. In this case, of course, I rely far more heavily upon illegal than upon immoral conduct.
Locke J.A., dissenting, agreed with Oppal J. that the sexual assault claim failed because of the appellant's consent. Turning to the appellant's claim in negligence, he held that the respondent failed in his professional duty as a physician. Supplying medically unnecessary drugs to a known addict was a negligent act. There was sufficient damage to sustain the action in that the respondent's conduct "assisted in keeping [the appellant] addicted for a year or more when she might have been receiving treatment" (at p. 60). The fact that she was subject to the disability of drug addiction for an extended period of time was foreseeable and inevitable.
Locke J.A. held that recovery on the basis of "breach of fiduciary duty" was not available. In his opinion, the evidence did not support any equitable rule operating to show the respondent in a fiduciary relationship with the appellant. He revealed her affairs to no one and he did not unduly influence her.
Locke J.A. disagreed with the majority that the maxim ex turpi causa non oritur actio barred the appellant's claim. Although there was joint sexual activity, there was no common purpose and there was no one criminal illegality to which both were parties. He observed that sexual intercourse between consenting adults is not a crime. Locke J.A. rejected the respondent's argument that immorality alone was sufficient to bar recovery. He held that sexual immorality is not relevant to the wrongful supply of drugs.
As to damages, Locke J.A. held that the appellant could succeed for her extended drug dependency as caused by the respondent's supply of drugs. He awarded only nominal damages of $1,000, noting that the appellant had recovered from her drug addiction except for her craving which was not the sole fault of the respondent. He held that this was not an appropriate case for punitive damages.
The court, by majority, thus dismissed the appeal.
The Appeal to this Court
The appellant then appealed to this Court. In addition to the parties, the Women's Legal Education and Action Fund appeared as intervener. At trial and in the Court of Appeal, the appellant sought recovery on a number of