The Doctrine of Public Policy in Canadian Contract Law

28 / Annual Review of Civil Litigation
who knows that his proposed partner is already within a state of matrimony.143
However, as noted earlier in the paper, the House of Lords held in Fender that
this principle does not apply where the married individual has already received
a decree nisi dissolving the marriage. Further, as several commentators have
suggested, the legislative annulment in England and in several Canadian provinces
of litigation respecting a breach of contract to marry entails that this line
of jurisprudence is now largely irrelevant.144 Ultimately, "even if such an action
is still possible, the changed social attitudes...would seem to make any such
agreements to marry binding, no matter when made... "'45
The final head of public policy usually treated within this category has
arisen in relation to contracts in restraint of marriage. The rule that such contracts
are invalid has a long and venerable history, and was stated as early as 1768 in
the English case of Lowe v. Peers.146 Nevertheless, the courts have since held
that a contract which merely provides a disincentive to marry will not fall within
the ambit of the rule.'47
6. Contracts in Restraint of Trade
While the category of contracts in restraint of trade has been described
by one commentator as "perhaps the most significant head" of public policy,'"
it is also the most voluminous. In recent years, it seems to have graduated to an
entirely independent doctrine of contract law, and is possessed of a surfeit of
rules and precedents which are far beyond the scope of this paper to address.
The present work shall therefore refrain from examining the history and nature
of its various heads, and restrict itself to an outline of the most rudimentary
143 Such contracts were deemed contrary to public policy in Sheehan v. Mercantile Trust
Co. (1920), 52 D.L.R. 538 (Ont. C.A.). See also Pope v. Pope, [1940] 3 D.L.R. 454,
[1940] B.C.J. No. 29 (C.A.) at para. 8, where the Court indicated that a contract pursuant
to which one woman agreed to pay another for obtaining divorce from her husband, in
order that theformer could marry him, would also be in violation of the rule.
144 See, e.g., Buckley, supra note 8 at para. 6.14, and Fridman, supra note 5 at 378.
145 Fridman, supra note 5 at 378. Another commentator has noted that "[t]he doctrine would
appear.. .to demand...fundamental revision": Dwyer, supra note 125 at 388. This proposition
is borne out by the jurisprudence. See, for instance, Brooks v. Alker (1975), 9
O.R. (24) 409 (H.C.J.), holding that a contract for the sate of land, which was entered
into by a husband and wife with a third party in order to provide them with the proceeds
necessary to effect their separation, was not invalid by reason of public policy.
146 (1768) 4 Burr. 2225 (Eng. K.B.). See also Bradley v. Bradley (1909), 19 Q.L.R. 525
(Div. Ct.).
147 Caron v. Caron,[1987] 1 S.C.R. 892, [1987] S.C.J. No. 32 at para. 13.
148 Waddams, supra note 4 at 400.