This work examines the scope of the divide between legal and equitable jurisdictions in
Canadian law. It focuses in particular on the divide between legal and equitable remedies,
which continues to mold the remedial approach in modem Canada.
It is concluded is that the strict separation between legal and equitable remedies is
detrimental to legal evolution. The judicial system must strive to serve justice by
embracing a flexible and responsive remedial approach. The retention of a division
between law and equity inhibits the legal response to the demands of an evolving society.
Arguments based in history no longer justify a restrictive and divided remedial
jurisdiction.
It is accepted that history and precedent cannot be abandoned altogether. A division
between law and equity must be maintained on some level but the scope of this division
needs re-evaluation. The distinction between legal and equitable rights does not in itself
necessitate a division in remedies. Rather, it is time to move towards a flexible
framework of remedies, which is responsive to the particular circumstances of the
dispute, irrespective of the historical origins of particular measures.
It is noted in Chapter 1 that a remedial approach influenced by an intermingling of legal
and equitable principles, is evident in recent Canadian jurisprudence. In particular, a
resurgence of equitable themes and the expansion of specific equitable remedies, has
occurred. Therefore, it is the aspects of equity's remedial jurisdiction that are focused on
in the body of this work.
Chapter 2 provides a brief historical outline of the origins of equity's remedial
jurisdiction. This outline highlights the equitable themes, which retain significance in a
modem context and must shape the remedial approach of the future. In the latter half of
Chapter 2 the fusion of the administration of law and equity under the Judicature Acts is
examined. It is concluded that a mingling of legal and equitable doctrine has occurred in
the wake of this fusion and remedial law must embrace this development.
The Canadian judiciary has taken some active steps towards breaking down the divide
between legal and equitable remedies. These steps are identified in Chapters 3 and 4, with
reference to the evolution of the constructive trust and equitable compensation
respectively. These remedies have expanded beyond their historical limitations and have
mingled with legal doctrine. The jurisprudence supports a flexible remedial approach that
rejects the strict confines of history.
It is concluded that a move beyond the divide between legal and equitable remedies must
not be resisted. Remedies must be loosened from their historical anchors to shape a
responsive remedial approach in Canadian law. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/9733 |
| Date | 11 1900 |
| Creators | Lynch, Lorna |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 6060989 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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