Equity and Trusts

AuthorRobert Chambers
Rights may be legal or equitable. This d istinction is the product of the
court system that exi sted in England before 1875. The common law
was administered by the courts of Common Pleas, King’s Bench, and
Exchequer, whereas equity was admini stered by the Court of Chancery.1
Those courts were merged into a single High Court of Justice in t he
1870s, but common law and equity continue to exist a s separate bodies
of law administered by t he unif‌ied court.
In most common law jurisdictions a round the world, equity is no
longer administered by a separate court of chancery but by a superior
court that applies both common law and equ ity. For example, in Ontario,
“[t]he Superior Court of Justice has all the jurisdict ion, power and
authority historical ly exercised by courts of common law and e quity in
England and Ontario.2 Although it administers both common law and
equity, they continue to exist as two separate bod ies of law:
1 See John Baker, An Introduct ion to English Legal History, 5th ed (Oxford: Oxford
University Pre ss, 2019) chs 3 and 6.
2 Courts of Justice Act, R SO 1990, c C.43, s 11(2). See also Law and Equity Act,
RSBC 1996, c 253, s 1; Judicature Act, RSA 2000, c J-2, s 5; Queen’s Bench Act,
1998, SS c Q -1.01, s 51.1; Court of Queen’s Bench Act, CCSM, c C280, s 32; Judica-
ture Act , RSNB 1973, c J-2, s 9; Judicature Act, RSNS 1989, c 240, s 3; Judicatu re
Act, RSPEI 1988, c J-2.1, s 2; Judicature Act, RSNL 1990, c J-4, s 3; Judicature Act,
RSNWT 1988, c J-1, s 9; Judicature Act, SNWT (Nu) 1998, c 34, s 2.
Equity and Trust s 67
Rules of law and equity
(1) Cour ts shall admin ister concurrently a ll rules of equity and
the common law.
Rules of equity to prevail
(2) Where a r ule of equity conf‌licts w ith a rule of the common
law, the rule of equity prevai ls.3
It is not always easy to tell whether a r ight is legal or equitable. That
depends on which court would have had jurisd iction if the proceedings
took place in England prior to 1875. The right is legal if it would have
been enforced in a court of common law and equitable if it could only
be enforced in the Court of Chancer y. This may seem like an odd way
to tell them apart, but there is probably no better method. A s Professor
Maitland said,
For suppose that we ask the que stion What is Equity? We can only
answer it by giv ing some short account of certain cour ts of justice
which were abolished. . . . [W]e might have said “Equity is that b ody
of rules which is ad ministered only by those C ourts which are known
as Courts of Equit y.” The def‌inition would not have been very sati s-
factory, but now-a-days we are cut o even from thi s unsatisfactor y
def‌inition. We have no longer any courts which a re merely courts
of equity. Thus we are driven to say th at Equity now is that body of
rules admi nistered by our . . . courts of justice which, were it not for
the operation of the Judicat ure Acts, would be admini stered only by
those courts wh ich would be known as Court s of Equity. This, you
may well say, is but a poor thing to c all a def‌inition. Equity is a cer tain
portion of our exist ing substantive law, and yet in order that we may
describe t his portion and mark it o f rom other portions we have to
make reference to court s that are no longer in existence. St ill I fear
that nothing bet ter is possible.4
You may wonder why it matters whether a right is legal or equitable
if both rights are en forced in the same court. The distinction is import-
ant in property law for two main re asons. First, the manner in which
3 Courts of Justice Act, R SO 1990, c C.43, s 96. See also Law an d Equity Act, RSBC
1996, c 253, ss 4, 5, 7, 44; Judicature Act, RSA 2000, c J-2, ss 15, 16; Queen’s Bench
Act, 1998, SS c Q-1.01, s 52; Court of Queen’s Bench Act, CCSM, c C2 80, s33;
Judicature Act, RSNB 1973, c J-2, s 26; Judicature Act, RSNS 1989, c 240, s41;
Judicature Act, RSPEI 1988, c J-2.1, s 39; Judicature Act, RSNL 1990, c J-4, ss90,
107; Judicat ure Act, RSY 2002, c 128, ss 7, 29; Judicature Act, RSNWT 1988, cJ-1,
ss 22, 45; Judicature Act, SNWT (Nu) 1998, c 34, ss 21, 42.
4 FW Maitla nd, Equity, Also the Forms of Action at Common Law: Two Courses of
Lecture s (Cambridge: Cambrid ge University Press, 1929) at 1.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT