Factors Which Vitiate Consent: Duress, Fraud, MIstake and Public Policy
Latter v Braddell(CP)- majority held that yielding to examination because of fear of force or being overpowered by violence does not constitute consent, but minority argued that there is no distinction between consent and reluctant obedience.
b) FRAUD (DECEIT)
TEST: 1. defendant must be aware or respoinsible for plaintiffs misconception
2. fraud will only negate consent where it relates to the nature and quality of the act (court has adopted a narrow view of teh nature of the act, while adopting a broad view of collateral matters so as to rarely vitiate consent) pg137
– deciet as to the harmful consequences of act raely vitiates consent (R v Lee, R v Ssenyonga, R v Currier) unless a duty of care can be established (Bell Ginsburg v Bell Ginsburg)
– consent will only be vitiated when the P gave consent under a misapprehension for which the D is responsible. this is not the same as cases where the D mistakenly believes the P has constented
d) PUBLIC POLICY
– consent has been vitiated for these reasons in R v Jobidon, Norberg v Wynrib, M(k) v M(H)
e) BREACH OF FIDUCIARY DUTY
– concept of consent operates on ass’n of individual autonomy, miust be free, full and informed
– where there is exploitation of a pos’n of poewr or trust, consent will be vitiated
-Test to det. if fiduciary rel’n exists: 1) is there an inequality between the two parties?
2) is this inequality being exploited?
3) vulnerabilty on behalf of one party must be shown.
Norberg v Wynrib(SCC)- concerned doctor who continued hte percription hius drug dependent patient in return for sex- held liable for battery, consent vitiated due to doctors exploitation of power imbalance, two judges held breach of fiduciary duty was independant of both tort and contract, one justice held D liable for breaching accepted standards of medical practise
M(K) v M(H)(BC CA)-Ps consent to father sexual advances negated b/c of breach of fiduciary duty. (esp reprehensible nature of conduct led to punitive damages?)
3. Consent to Criminal or Immoral Acts
Ex Turpi Causa Non Oritur Actio: a person cannot recover in tort law for the consequences of his/her own immoral or illegal conduct
– application has been narrow and limited in Cda due to considerable disagreement about purpose of doctrine – prot’n of integrity of legal system? or prevent an award of damages from whcih P would profit for illegal behaviour?