Equity's maxims as a concept in Canadian jurisprudence.

• Author: Berryman, Jeff

In Pro Swing v Elta Golf Inc the Supreme Court of Canada made passing reference to the functions of equity's maxims. Other courts have made similar references; indeed, judicial mention of equity's maxims occurs quite frequently. This is surprising given the dearth of academic commentary on equity's maxims, and that little mention of the maxims now takes place in Canadian law school curricula. In contrast, open any of the equity texts of the 1800s and significant attention is accorded to equitable maxims. This article seeks to explore whether the concept of equity's maxims, as against the content of the individual maxims themselves, serves any real purpose today. It starts by providing an historical evolution of the notion of equity's maxims, noting in particular that they are now largely ignored in the United States of America but still have topicality, to widely varying degrees, in Commonwealth jurisdictions. It then explores three divergent functions that have historically been served by equity's maxims. Next, it turns to three roles that may be fulfilled by equity's maxims today. It concludes that equity's maxims serve a minimal function today. They do, however, preserve the distinctness of equity's methodology from the common law and do allow some explicit dialogue on morality and ethics in those areas of private law where equity still plays a significant, determinative role.

Dans l'arret Pro Swing c Elta Golf Inc, la Cour supreme du Canada a rappele les fonctions des maximes de l'equity. D'autres tribunaux ont mentionne de la meme maniere ces fonctions; en fait, il arrive assez souvent que les instances judiciaires abordent la question des maximes de l'equity. On peut s'en etonner etant donne la rarete des articles universitaires publies sur le sujet et le peu d'attention accorde aux maximes de l'equity dans les programmes d'etudes des facultes de droit canadiennes de nos jours. En revanche, en compulsant n'importe quel texte sur l'equity publie dans les annees 1800, on constatera l'importance accordee aux maximes et doctrines d'equity. Dans cet article, on examine dans quelle mesure le concept des maximes de l'equity, par rapport au contenu de ces maximes en soi, vise un objectif concret de nos jours. L'article debute par une revue de l'evolution historique de la notion des maximes de l'equity, en faisant notamment observer qu'elles sont de nos jours grandement negligees aux Etats-Unis bien qu'elles conservent leur actualite, a des degres tres divers, dans les pays du Commonwealth. L'auteur explore ensuite trois fonctions divergentes que, de tout temps, les maximes de l'equity ont remplies. Il aborde dans la foulee les trois roles que les maximes de l'equity pourraient jouer a l'heure actuelle pour conclure qu'elles ne remplissent aujourd'hui qu'une fonction minimale. Elle permettent cependant de preserver le caractere distinctif de la methodologie relative a l'equity par rapport a la common law et ouvrent la voie a un dialogue explicite au sujet de la moralite et de l'ethique dans les domaines de droit prive ou l'equity continue de jouer un role significatif et determinant.

Table of Contents I. INTRODUCTION II. EVOLUTION OF THE CONCEPT OF EQUITY'S MAXIMS A. The Mnemonic B. The Substantive C. The Methodological III. WHAT ROLE DO EQUITY'S MAXIMS PLAY TODAY A. Moral Rectitude B. Scaffolding C. Old Coat IV. CONCLUSION I. INTRODUCTION

In Pro Swing Inc v Elta Golf Inc, (1) the Supreme Court of Canada had occasion to address the recognition and enforcement of a non-monetary foreign judgment. The judgment is important for practitioners of private international law. (2) However, another important aspect of the judgment of Justice Deschamps for the majority is her reference to the nature of equitable jurisdiction and the role played by equitable maxims. She states:

At common law, the typical remedy is an award for damages. However, a wide range of equitable remedies are available, and they take various forms. Their commonality is that they are awarded at the judge's discretion. Judges do not apply strict rules, but follow general guidelines illustrated by such maxims as "Equity follows the law", "Delay defeats equities", "Where the equities are equal the law prevails", "He who comes to equity must come with clean hands" and "Equity acts in personam" (Hanbury & Martin Modern Equity (17th ed. 2005), at paras. 1-024 to 1-036, and I. C.F. Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (6th ed. 2001), at p. 6). The application of equitable principles is largely dependent on the social fabric. As Spry puts it: ... the maxims of equity are of significance, for they reflect the ethical quality of the body of principles that has tended not so much to the formation of fixed and immutable rules, as rather to a determination of the conscionability or justice of the behaviour of the parties according to recognised moral principles. This ethical quality remains, and its presence explains to a large extent the adoption by courts of equity of broad general principles that may be applied with flexibility to new situations as they arise. (3) As it turned out, none of equity's maxims were called into play in deciding the case. However, this is not the first time the Supreme Court of Canada has made reference to equity's maxims, (4) and in senior provincial appellate courts, equity's maxims have been relied upon in a much more definitive role. Recently, the Court of Appeal for Ontario in Grant Forest Products Inc (Re) had occasion to resort to the equitable maxim that "equity looks on that as done which ought to be done," (5) using it as the sole justification for retroactive enforcement of a tax refund agreement by the appellant ahead of other secured creditors of the respondent company, which had received protection under the Companies' Creditors Arrangement Act. (6)

At first blush, the continued and frequent resort to equity's maxims in Canada appears anachronistic. As early as 1881, Ontario's courts were placed within one single Supreme Court of Judicature. This followed on the heels of the passing of the Judicature Act (7) in England in 1873. In the other provinces of Canada, there was also little appetite for separate equity courts. Within Canadian legal education, no law school continues to offer, or has offered for some time, a course exclusively dedicated to equity. Rather, equity is discussed, usually briefly, in courses on contract law (equitable mistake, unconscionability, duress and undue influence); remedies (specific performance and injunctions); trust and fiduciary courses; restitution; and a smattering of other courses. Similarly, if one reviews the principal Canadian texts in these areas, the word "maxim" is rarely, if ever, uttered. Robert Sharpe, in Injunctions and Specific Performance, references a couple of maxims under a section on general principles and other discretionary defences to equitable remedies. (8) My text, The Law of Equitable Remedies, despite its title, gives short shrift; a matter that has been corrected in the second edition. This absence of Canadian treatment may explain why Justice Deschamps needed to reference an English and Australian text for support. (9) What then are we to make of continued resort to the maxims of equity in Canadian law? Are they simply a throwback to some historical anachronism or do they still tell us something about the epistemology of equity?

This article seeks 1[o explore the concept of equitable maxims, as opposed to critiquing individual maxims, and whether it has any resonance or relevancy today. Part II traces the history of the concept of equity's maxims. Maxims were a way to communicate elaborate principles of equity doctrine with an economy of language. Later, maxims were envisaged as embodying a methodological approach guiding how equity operated. Part III explores whether there is still a conception of equity's maxims that can be usefully applied to the exercise of judicial discretion, or whether, as has happened in the United States of America (US), this part of equity's jurisprudence can also be safely discarded.

2. EVOLUTION OF THE CONCEPT OF EQUITY'S MAXIMS

   Open any of the principal equity texts of the nineteenth century and one will find an exposition of equitable maxims. The immediate forerunner of these was the work of Richard Francis, who produced a slim one-hundred-leaf folio called the Maxims of Equity in 1728. (10) Francis was following a pattern set earlier by the likes of Francis Bacon, who had reduced English common law to a series of maxims; (11) William Noy; (12) and Christopher Saint Germain, who spoke referentially of the maxims of English Law in his Doctor and Student dialogues. (13)

   Francis detailed fourteen maxims of equity. He provided no particular exposition of the maxims, but simply grouped cases as examples of their application. However, the preface to his book is instructive of his attitude towards equity. Francis suggested that all judges should be guided by their conscience, and if they were their decisions would be just. Yet, due to the fact that "the depravity of human Nature is too apparent, and the Precepts of Conscience too often disregarded [sic]," there must be restraint on judges so that they judge according to posited law. (14) But here again, Francis tells us that because "human Providence is too meak, to make Laws, which shall prove just in all Cases; and human Nature is too corrupt to be left solely to the Guidance and Directions of Conscience [sic[," then the "Excellency of our English Polity [is to avoid] both these Extreams [sic]." (15) Francis described the relationship between common law and equity: "... the Court of Law, rigidly adheres to its own established Rules, be the Injustice arising from thence, ever so apparent; whereas the Court of Equity will not adhere to its own most established Rules, if the least Injustice arises...