Equity: the Law of Judicial Conscience

Abstract

Equitable remedies are completely left to the discretion of the judge. This contrasts to the common law right of damages for breach of contract. Therefore, to illustrate this point, there is no right to rectify a contract, or to stop a company or government from acting in some way that is otherwise legal (injunction). The overall circumstances in each case will be carefully scrutinized as to what the needs of justice are, in maxims such as "irreparable harm," "unconscionable," and "the balance of convenience."

The reason for [Charles Dickens]' dark view of equity at the end of the nineteenth century was because, ironically, it had become at least as rigid as the common law it was supposed to redress. The Chancery got a bad reputation as equitable principles became the "fog" Dickens referred to, and justice depended on the "length of the Chancellor's foot." Equity was vexed by too much discretion on one hand and what became an unduly rigid application of its own rules on the other. It was also not viewed as the most relevant, applicable law. No one was happy with equity in Dickens time.

Modern equity is well-entrenched in Canadian law. It is accepted for the purpose it originally arose, to provide relief and remedies for those in extraordinary cases where the common law does not adequately serve the ends of justice. Unlike in Dickens' time, most Canadians do not understand how equity is different from the common law or legislation and today there is no particular need to distinguish them in every day life. What was justice according to the length of the judge's foot has been replaced by justice according to the judge's (and ideally, society's) conscience. Like the common law, judges will continue to create and shape equitable principles to meet the needs of a changing society.