The Jurisdiction of Equity

• Author: Jeffrey Berryman
• Pages: 1-21

1

CHA PTER 1

THE JURISDICTION

OF EQUITY

A. A BRIEF HISTORY OF EQUITY

This overview begi ns with a brief histor y of equity with some observa-

tions on the state of equity juri sprudence in Canada, and concludes

with an outline of current equitable maxims.

Most legal systems present a paradox. The very raison d ’être of a

legal system is to provide a just ordering and moral g uidance to the

citizenry. Such a goal places a premium on universalit y and certainty

— a citizen needs to rest secure in his knowledge of the application of

laws and legal principles before undertaking activities or enteri ng into

adjudication. The paradox is that slavish attention to rules and prin-

ciples can itself per petuate an injustice. As any human r ights lawyer

will attest, nothi ng is more unjust than the application of a principle of

equality in di sparate situations. It was against a background of extreme

common law rigidity and the need to ameliorate its consequences that

the principle of equity developed.1

Prior to its transformation between 1700 and 1800, the common

law had grown inf‌lexible in both procedure and substantive law. The

former was controlled by a writ system, which demanded that litigants

frame their dis putes within a known class of actions; the latter, by a

1 The picture of equity pre sented here follows an Arist otelian approach: see,

Nicomachean Ethics, rev. ed., trans. H . Rackham (Cambridge: Har vard Univer-

sity Press , 1968) Book V, ch. 10.

THE LAW OF EQUITABLE RE MEDIES2

monopolistic concern with the protection of real propert y and the

prevention of civil unrest. Contractual actions, for example, were not

enforced because a promise had bee n made or consideration had passed,

but rather because the prim ary means of contracti ng was through the

creation of a penal bond, the breach of which gave ri se to an action for

debt on the bond. The common law also developed a bifurcated model

of adjudication, in which fact-f‌inding lay with the jur y and annuncia-

tion of law with the judge.

Confronted with an unyielding common law, and dissatisf‌ied with

its outcomes, litigants would occasionally pet ition the monarch, and

later the king in council, for a dispensation from the “king’s justice.”

The frequency of these petitions caused the monarch to pass them on

to his or her chancellor for resolution. Chancellors were drawn from

ecclesiastical circles and, naturally, their reference points were rooted

in canon law and the practices of t he ecclesiastical court s. This emer-

ging jurispr udence was marked by its concern for the conscience of

the individual, in t he knowledge that the violation of a promise made

before God threatened the promisor’s soul. The chancellor, as the sole

arbiter of fact and law, did not distinguish between the two, and hence

his decision maki ng was pragmatic, robust, and highly contextualized.

Contemporary populist notions of equity a s a principle which

softened the common law into greater fair ness are indeed supported

by historical antecedents. The notion that the chancellor could hear a

petition and grant a dispensation from the rigours of the common law

f‌inds its modern equivalent in the notion that equity is only available

after proof that the common law is def‌icient or inadequ ate. The concern

for the protection of a person’s conscience imbues the modern concern

with the protection of f‌iduciary duties, conf‌idential information, and

the coercive enforcement of contracts by specif‌ic perform ance.

The common law judges did not sit idly by while the chancellor

continued dispensing justice. These inroads undermined not only the

supremacy of the common law, but also the pecuniar y self-interest

pursued by both judges and court off‌icial s in having litigants brought

before the common law courts. In the political transformation of Eng-

land in the seventeenth centur y, the power of the chancellor, as an

executive arm of the King, was placed under scrutiny. The common

law courts, whose judges had alig ned themselves with the cause of

Parliament during the English Civil War, saw to it that equity would

have a much diminished role in the future. Chancery courts also be-

came victims of t heir own success. The recognition given to parol (oral)

contracts and to the “use,” or trust — perhaps equity’s greatest con-

tribution to contemporary juri sprudence — meant that more litigants