January 16, 2025
We have posted numerous articles discussing various aspects of equity but have not yet posted a stand-alone article defining and explaining what equity is all about.
Let us fix that now.
Once upon a time, the common law was an unruly beast. It was largely administered locally, and was dominated by the major landowning noble class, who controlled the appointment of judges and sheriffs.
As the Kings gained more centralized control, people would petition the King to intervene and replace unfair results with the King’s Justice. Eventually, this became so popular that the King delegated the job to one of his officials, the Lord Chancellor, who presided in the Court of Chancery.
This Court left issues of damages up to the common law courts, and developed its own set of remedies, now referred to as equitable remedies. These include injunctions, specific performance, various forms of estoppel, rectification, and recission.
By the 18th and 19th centuries, common law was stilted by the formulas of forms of action, and strict rules of pleading. This fuelled the growth of equity. As the Industrial Revolution in the 1800s changed England from a country where wealth was equivalent to land ownership to a country whether wealth was possible through commerce, the common law courts became the home of commercial disputes. Property disputes, especially wills and estates cases, often ended up in Chancery, where they often became bogged down, and only the lawyers got wealthy. Charles Dickens’ novel Bleak House in the middle of the century is the story of a valuable estate where before the question of who inherited was resolved, all of the money had been spent on lawyers. This contributed to calls for reform of the legal system and fusion of the two systems of courts into one, with one set of judges and one set of rules of procedure, took place between 1873 and 1875.
However, despite the merger of the courts, equity continued as a set of principles and remedies that kept the strict rules of common law from giving overly harsh results.
Equity remains a branch of law that deals with situations where the strict rules of law would result in an unfair outcome. Just like the common law, Canada inherited equity from England while a British Colony. Initially, equity in Canada, like equity in England, had its own system of courts, called the Courts of Chancery as in England. In Ontario, these were joined together with the common law courts beginning in 1873. The combined court continues as the Superior Court of Justice. Under the provisions of the Courts of Justice Act, this court has jurisdiction over both law and equity. The Act further provides that, where equity and law conflict, equity governs.
So, equity remains a vital, and vibrant tool in the legal toolkit.
WHAT WEILERS LLP CAN DO TO HELP YOU
Not every lawyer enjoys complex cases, or wants to face the risk of unintended consequences. At Weilers LLP, we love tough cases. We know about the importance of knowing the facts, as well as the law. Our litigation team includes the lawyer who teaches equity-based courses at the Bora Laskin Faulty of Law, so we understand the complexities of the conflict between rules and fairness. Although we cannot protect every client from unintended consequences, if your case requires a focus on fairness, we may be the right lawyers for you.