Date: Fri, 8 Feb 2008 18:19

From: Vaughan Black

Subject: Past and future wage loss and ex turpi

It's interesting that the SCC's explanation for the denial of recovery for lost wages is ex turpi, as opposed to the plaintiff's simply being unable to exercise any earning capacity he might otherwise have had due to his being behind bars.

What if, during the relevant period, the plaintiff had been behind the bars of some foreign prison and not charged with any offense (Guantanamo comes to mind)? In those circumstances the ex turpi explanation would not be available.

Would we allow such a plaintiff, injured by some unrelated event, to claim damages for lost earnings (or even loss of earning capacity) -- earnings that he could not in fact have made due to his being incarcerated in the relevant period?

vb

Quoting Jason Neyers:

Dear Colleagues:

Some might be interested in the recent SCC decision of British Columbia v. Zastowny. The issue at stake was whether a plaintiff could sue a sexual assaulter for past wage losses, part of which included compensation for time spent in prison. The SCC held that on the facts this was not possible on the basis of ex turpi causa non oritur action.

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