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Norberg v Wynrib, [1992] 2 SCR 226


Appellant had tooth problems and in the process got addicted to painkillers (fiorinal/codeine). A got the painkillers prescribed by a doctor until he retired. New doctor refused to give her more pills.

A then went to a doctor, Wynrib, and got pills on pretext that of an injury. Eventually Wynrib confronted her and A admitted she was addicted. W demanded sexual favours in return for drug, and she eventually gave in. A was charged under the Narcotic Control Act and went to rehab. When she got out, she sued Wynrib for battery/assault, negligence and breach of fiduciary duty.

** No sexual assault because of consent.
** Breached duty and standard, but no physical damage so not negligence
** Breach of fiduciary duty, but defence of ex turpi causa was available to the defendant

** Upheld trial judge that appellant gave consent
** Upheld no breach of fiduciary duty (because no breach of confidential information)
** Negligence: there was causation, but contributory negligence as well as reduced damages since other sources of drugs were used

Appeal dissent:
** No link between sexual immorality and the wrongful supply of drugs


Can a person consent to battery; is ex turpi causa available as a defence in this case?


The ex turpi causa defence is limited; there must be a sufficient causal link between the injury and the crime committed.

In a relationship of unequal power, the defence of consent may not be available if acquired by a person using their position of authority.


The Court on the issue of consent:
** Normally, fraud or deceit may vitiate consent
** But, consent is based on individual autonomy and free will; there are situations where that will not be present despite a lack of force, threats of force or incapacity. Here, the importance of unequal power between the parties (In contracts: duress, undue influence, unconscionable transaction, etc). Drug dependency diminished her ability to make a real choice to consent
** Determining factor is that Wynrib instigated the relationship. He used his power to exploit her vulnerability
** Therefore, defence of consent fails.

The court rejected the ex turpi causa defence, stating that the plaintiff's criminal conduct in seeking drugs played no causal role in the doctor’s sexual exploitation of her.
** The appellant acted out of desperation; and doctor took advantage. Recovery should not be denied on this basis.
** There is a policy argument that it is not in the public interest to absolve a doctor of civil liability where he deliberately abuses his position of power (goes to the integrity of the legal system).

The court stops short of recognizing a fiduciary duty:
** But McLaughlin, in a concurring decision, does find a fiduciary duty (consent is vitiated by the unequal power dynamic)
** Dissent (Sopinka) states that a case-by-case analysis required to determine whether consent is vitiated. In this case, consent was given and sufficient.

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