Clean Hands: Effect on Equitable Remedy

The Doctrine of Clean Hands is one which has been brought to both represented and non-represented litigants’ attention recently. What is this doctrine you may ask? It is fairly simple and just as it sounds: that a person appearing in court to ask for a remedy or order to be granted, must be free from unfair or improper conduct (have “clean hands”) in regards to their claim.

Though it may sound simple, this phrase of “clean hands” has been repeated more and more often in both our Provincial Court and Court of King’s Bench – and not in a positive sense. The judiciary has repeatedly found themselves reminding litigants that they are coming to court with unclean hands, and as such, are not finding themselves in the court’s favor in terms of the assistance of an equitable remedy to their claim.

While legal remedies are granted to a litigant by way of legal right, equitable remedies may be obtained by a litigant by way of the court’s discretionary power. And a litigant with unclean hands is not likely to result in the court exercising their power of discretion to award a remedy that is equitable in nature to the litigant.

By way of example, one of our lawyers recently represented a client as a Defendant in a trial regarding child support at Provincial Court. Not only was the Plaintiff found to be incorrect in their claim and request for legal remedy, the Judge made clear that as the Plaintiff had unilaterally made the decision to stop paying child support (as he believed his claim to legally support doing so), he came to Court with “unclean hands” and costs were awarded on a solicitor-client basis against him. A similar situation was also seen in the Court of King’s Bench recently while appearing at a Domestic Special regarding the reasonableness of section 7 post-secondary expenses. The Defendant in this matter had a history of missed payments and breach of Court Orders against him and was again noted to be appearing in Court with “unclean hands”. Costs were similarly awarded against this litigant in addition to the Court not exercising its discretion to grant an equitable remedy to the litigant.