Monday, August 8, 2016

Rotman on Canada's Fusion of Law and Equity

Leonard I. Rotman, Schulich School of Law, Dalhousie University, has posted The “Fusion” of Law and Equity?: A Canadian Perspective on the Substantive, Jurisdictional, or Non-Fusion of Legal and Equitable Matters, which appears in the Canadian Journal of Comparative and Contemporary Law 2 (2016): 1-40:
Equity, in its broad understanding, has long been a fundamental part of law. Its history may be traced through principles illustrated in the Old Testament and, in various formulations, through Ancient Greek and Roman legal constructs, as well as in Natural Law and Canon Law. While the historic presence of equity within various systems of law is unquestioned, the jurisdiction of equity within contemporary legal systems has been a matter of significant debate and confusion. Facilitating a better understanding of the contemporary role of equity requires knowledge of its meaning and the implications of the historic merger of legal and equitable jurisdictions. This paper establishes a framework for appreciating the contemporary challenges faced by equity by examining the Supreme Court of Canada’s analysis of the merger of legal and equitable jurisdictions in two major cases involving allegations of breaches of fiduciary duty: Canson Enterprises Ltd v Boughton & Co and Hodgkinson v Simms. The inconsistent application of equitable principles in these cases demonstrates the court’s confusion over the effects of the historic merger of law and equity and offers a valuable perspective for the administration of justice in contemporary law.

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