The Doctrine of Public Policy in Canadian Contract Law

2 / Annual Review of Civil Litigation
upon which society exists."' And yet, despite its seeming veneration and importance,
there are few concepts which have given rise to greater confusion and
uncertainty.
Academic treatments of the subject are commonly riddled with allusions
to the unusual degree of complexity that accompanies this area of the law.6 One
author plainly states that "[t]his head of the law... has been clouded by much
confusion of thought,"7 a sentiment which is amply illustrated by the fact that
the first paragraph of a recent text devoted entirely to the subject is entitled
"complexity."8 Such "confusion" and "complexity" are partially attributable to
the fact that public policy, especially as the doctrine exists within contracts
jurisprudence, is often invoked in response to a wealth of disparate situations
wherein "[t]he underlying conflict between public and private interest is not
readily conducive to the formulation of clear rules and principles."9 Yet it must
also be acknowledged that the subject has produced an inordinate amount of
judicial disagreement,'" leaving practitioners and commentators alike with little
in the way of a consistent organizing principle."
It is perhaps because of this lack of clarity that the doctrine has been the
subject of such trenchant criticism. A famously recurrent expression of the
5 G.H.L. Fridman, The Law of Contract in Canada, 5th ed. (Toronto, Carswell, 2006) at
362 [Fridman].
6 See, e.g., H.G. Beale et al, eds., Chitty on Contracts, 29th ed. (London: Sweet and
Maxwell, 2004) Vol. 1, at 938 [Chitty], stating that "[t]he diversity of fields with which
public policy is concerned, and of the circumstances in which a contractual claim may be
affected by it, combine to make this branch of the law of contract inevitably complex — a
complexity which has been aggravated by lack of systemization and by the confusing
terminology which has often been adopted".
7 Michael Furmston, Cheshire, Fifoot & Funnston's Law of Contract, 14th ed. (London:
Butterworths, 2001) at 405 [Cheshire].
8 R.A. Buckley, Illegality and Public Policy, (London: Sweet and Maxwell, 2002) at para.
1.01 [Buckley].
9 Ibid.
10 A rather striking example of judicial conflict with respect to the meaning of public policy
can be found in Egerton v. Earl of Brownlow (1853), 4 H.L.C. 1 (U.K. H.L.), where
sixteen judges issued widely divergent opinions as to whether a condition in a will
offended the doctrine. Winfield, supra note 1 at 88, states that "[t]he variety of opinions
expressed reminds one of Jarndyce v. Jarndyce in Bleak House, of which Dickens says
that no two lawyers could discuss it for five minutes without flatly contradicting each
other."
I 1 The lack of a working theory of public policy has always been acknowledged in the
literature. Buckley, supra note 8, states at para. 6.04 that, "[t]he lack of any clearly defined
doctrinal basis for declining to enforce contracts on public policy grounds can give rise
to difficult questions..." See also D. Lloyd, Public Policy: A Comparative Study in English
and French law (London: The Athlone Press, 1953) at 149 [Lloyd] (indicating that "[i]n
English Law... public policy is treated as a haphazard rule the basis of which has never
really been explored"), and "Note: A Law and Economics Look at Contracts Against
Public Policy" (2005-2006) 119 Harv. L. Rev. 1445 at 1445 (referring to "the absence in
the existing literature of a comprehensive framework for the void for public policy
doctrine").