FOUNDATIONS OF CANADIAN LAW

Equity Essay

1. Equity seeks to mitigate the harshness of abstract laws. However, in attempting to

achieve this aim, equity detracts from the predictability and consistency of rigid rules.
Discuss. (15 marks)

Common law was originally based on the customs and traditions that governed England,
and the royal courts were in charge of ensuring the proper administration of these laws. The law
of equity is a set of rules created by the courts of Chancery in order to mitigate the harshness that
the common law system provided to the country. There is a certain relationship between the
common law and equity. The Courts of Chancery introduced the law of equity in order to fill in
the gaps of law that common law failed to address. In addition, equity sought to avail a kind of
flexibility in the law because the common law presented a rigid system where writs governed the
system of judgment. Equity is fair and just rule and looked into availing fair judgment to
individuals based on the rules that governed equity and the particular circumstances of the case.
The common law availed only monetary remedies when addressing grievances brought forward
by the parties of a case in order to determine which party can claim victory of a case. The law of
equity brought about a system where the judges weighed the particulars of the case to determine
whether to avail a remedy in terms of damages or provide a remedy that did not border on
financial grounds, such as an injunction, thus boosting the remedies available to parties. (4
marks)

Lionel Smith comments that “Equity is not a set of rules but a state of mind…it is not a
single thing”. This being said, it is evident that equity conflicts with the traits and characteristics
of positivism theory, in that it contradicts the notion that the law should be predictable and
constant. However, this is necessary in order for the law to ensure justice and provide fair
outcomes. Aristotle believed, “equity should be paramount and superior to formal justice”.
Nonetheless, at the end of the day, the truth of the matter is that the formal law and equity should
work in unison and achieve harmonization. (3 marks)

Alastair Hudson discusses in his article that the law of equity is seen from two disparate
viewpoints. On one end, it is argued to be open-textured and adaptable to constant change. On
the other end, it is seen as an enemy of order in law, particularly when society mandates certainty
in its rules. However, these viewpoints do not need to be mutually exclusive; rather, it is possible
that equity can be both adaptable and disruptive to order depending on the situation and
circumstances. Equity is applicable on a case-by-case basis. In each case, one must consider the
degree and extent that equity should be applied. This is aligned with Lionel Smith’s viewpoint,
as he strongly expresses that “equity is not a single thing”. (3 marks)

Wesley Newcomb Hohfeld in his article, The Relations between Equity and Law, states,
“I do not think that any one has expounded or ever will expound equity as a single, consistent
system, an articulate body of law. It is a collection of appendixes between which there is no very
close connection. If we suppose all our law put into systematic order, we shall find that some
chapter of its been copiously glossed by equity, while others are quite free from equitable
glosses”. In essence, equity will not be applicable in every circumstance. When a case is fairly
black and white, the formal law may be better suited. Equity is better suited approach for grey
areas, if you will. Alastair Hudson believes that equity is not the preferred approach if one
believes hard and strict rules are needed. He argues that by “thinking that law must always
involve hard-and-fast rules”, this makes equity appear as “bad”. However, the point of the matter
is that hard-and-fast rules will sometimes work, whereas on other occasions, they will not.
“Rigid systems cannot serve all of our needs in the modern world because unanticipated events
will require us to be able to react quickly and to create novel solutions for novel circumstances”.
Therefore, equity in reality is not bad; it is not an enemy of order. Instead, equity should be
viewed as a necessary and complimentary to providing justice and ensuring the mechanics of the
legal system operate efficiently and fairly. (5 marks)

2. Explain the relevance of conscience in terms of equity.

Equity is founded upon a methodology identified by Aristotle in his Ethics which attempts to
mitigate the rigidness of abstract rules and the formal justice system. Equity is also based upon
the notion of conscience. Therefore, when a court judges in the name of conscience, the court is
holding up the person’s behaviour to an objective standard. Conscience generally implies a
person’s ability to recognize what is right or wrong. It involves moral judgment. With
conscience, we look to the individualized circumstances of each case; however, combining this
with an equitable approach, we also recognize than an objective perspective must be conjoined.
For instance, take the example of provocation. The defence involves a two-part test: 1. Would
the wrongful act deprive an ordinary person of self-control (objective); and 2. Did the accused
have a chance to cool down before reacting to the wrongful act? (subjective). The latter looks to
the conscience of the person and their individual reaction, not how long others would take to
cool down. Thus, if a person reacts after a week to his wife cheating by murdering the other man,
he clearly would have had time to cool off. Therefore, he is acting, not in the moment and as
such, it is unconscionable.