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Thursday, June 2, 2011

Rotman on Fusion of Law and Equity in Canada

Leonard Rotman of the Faculty of Law, University of Windsor, has posted a working paper on SSRN entitled "The Fusion of Law and Equity: A Canadian Perspective."

This paper looks far more law than legal history, despite the author's keyword choices, but I'm including the abstract here because your mileage may vary, and because of my love for all things equity. Here it is:

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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