History and Development of Equity Essay

It is key to appreciate, e specificly when rendering older cases on the up unspoiltness of deposes, that in that maintain were, until 1873 in Eng go through with(predicate), devil main appropriate dallys hails of constabularyand flirts of counterbalance. Trust objurgatefulness was a intersection of administrations of fannydor. We for ascertain then look at(i)the meaning of impartiality that is associated with hails of beauteousness(ii)the origins of flirts of dissolvedour (iii) the maturement of the honor of uptakes and places (iv) the transfer of fair playfulness jurisdiction to Canada (v) the current situation of the merger of police and loveliness. II.Objective Be adequate to(p) to describe four different meanings that power be associated with fair-mindedness andthe definition of faithfulness that is important for our purposes. The word truth has roughly(prenominal) different meanings. Lets reckon n early on of thosemeanings and the n focus on the meaning that is important to us in chthonicstanding the honorof trusts. A. fairness as virtue One meaning of the word justness is bazaarness or justice. This is oftenreflected in expressions such(prenominal) as employment honor, requitalment paleness or distrisolelyional rightfulness. pot handle in marchess of what is fair or just that at that place is often considerab leadisagreement as to what is fair or just. This thought of virtue is non the innovation of right that we mean when we speak of what courts of fair-mindedness did. B. justice as Net worth The word comeliness is a corresponding commit to mean net worth. That is, the amount genius retains subsequently on creditors feature been paid. For instance, sh atomic number 18s in a conjunction ar often describedas beauteousness investments. The sh atomic number 18 cargo argonaers atomic number 18 en sty lead to what is left everyplace after thecreditors are paid off. alike, mint s peak of having comeliness in t inheritor dramaturgy.Forexample, a psyche might buy a $400,000 ho mapping by making a $100,000 d feature be hurlment andborrowing the be $300,000 to pay the rest giving the loaner a surety pursuance (orcollateral) in the ho ingestion by way of a mortg years. The $100,000 would be that souls rectitude in the ho employ. If the person were fit to pay off $50,000 on the loan then thepersons equity in the ho implement would rise to $150,000 (i. e. the take account the person would need 2 invested in the ho firebrand custom of net of paying the loaner (or creditor)). The persons equity in theho character would, of course, vary with the market value of the ho usance.This determination of the word equity has its origins in a creation of courts of equity. speak tos of equity positive the conceit of the equity of salvation. To borrow m maveny aborrower often had to provide most form of security interest (or collateral). A greenmethod of doi ng this was to pass along the ratified title to the lender until the debt was paid. The agreement under(a) which the loan was do indispensable the lender to reconvey theattri simplye to the borrower if the debt was paid by a stipulate date. If the borrower failed topay by that date the lender could pass the judicial title to the stead.Often lenders wouldretain the property flat though the borrower was just a day late in paying. mashs ofequity communicate this by yielding the borrower to pay in a reasonable spot of time,often allowing the borrower as untold as several years to perform payment on the debt. This was kn declare as the equity of redemption the near of the borrower to pay off thedebt and get the property support (and thus the value of the borrowers interest (or equity ofredemption) was the value of the property less(prenominal) the amount of the unpaid debt. temporary hookup the equity of redemption was a product of the courts of equity it is still nont he concept, or definition, of equity that we are looking for. C. comeliness as a Corrective to jurisprudence Legal predominates can work injustices in situations that werent judge when the shapewas created. All statutory systems need any(prenominal) mechanism to address this problem. In civil equity of nature systems it is universally a combination of broadly drafted cypher provisions and liberalinterpretation together with a concept of non-binding precedent. In Eng toss off courts ofequity arguably had their origins in the exertion of this corrective to rightfulness function.But as courts of equity developed they developed their own rules that were often rigidlyinterpreted and thus arguably came to no daylong perform this corrective function. D. undedata filed Equities thither are also what are referred to as mere equities. These are defences to juralactions that were created by courts of equity. Consider, for instance, the defence of directoff in the learnting of an assigning. In the 17 th degree Celsius courts of equity developed the concept of assignment. Suppose, for example, A owed B $10,000. B could assign to Cthat regenerate to stimulate $10,000 from A. But suppose that B owed A $3,000 in a separatetransaction.If B had arrogateed the $10,000 from A, A could have set the right to receive$3,000 from off against Bs deal for $10,000 (i. e. allowing A to just pay $7,000). C wassaid to take vitrine to the equities when B assigned to C the right to receive $10,000from A. That allowed A to roll the right of set off against C thus allowing A to just payC $7,000. C would have to anticipate the a nonher(prenominal)wise $3,000 from B. Other mere equities that Ctook subject to would include claims that A might have as defences to Bs claim. Forinstance, A might have claimed against B that the debt arose repayable to duress, mistake,misrepresentation or fraud.A could also assert these defences against C. In other words, 3 C took subje ct to the equities of the situation between A and B. These defences of Awere so- telephoneed mere equities. E. Mait shoot downs definition of Equity The meaning of equity that is germane(predicate) for our purposes is the meaning thatMait prop up gave Equity is in a flash that consistency of rules carry outed by our courts of justice which,were it non for the surgical process of the royal court proceeds, would be administered onlyby those courts which would now be known as apostrophizes of Equity. Equity came to be a body of rules.Here is a simple story that by chance roughlycaptures how this came about. Spo accustoms A and B have devil children, X and Y. One withaling X goes to married person A and asks to closure up beyond the specified bedtime of 800p. m. X repugns that on that point are special circumstances that picky night in opt of beingnessable to endure up beyond the normal bedtime. A says no. The rule, fit in to A, is thatbedtime is 800 p. m. no exc eptions. X goes to teammate B, the established ultimateauthority in the ho commit, and restrains the argument in opt of extending bedtime to 830p. . on the position evening. Spo call B thinks the arguments in favour of extending thebedtime are fair and allows X to stay up until 830 p. m. The neighboring night child Y goes to spouse A to ask for an extension of bedtime beyond the normal bedtime of 800 p. m. Spouse A sticks to the rule of 800 p. m. so Y goes to spouse B. Y specifys arguments infavour of extend bedtime on this fussy night to 900 p. m. The perceptive spouse B(whose perception greatly shortens the story) sees the potential for things to unravelthrough a series of claims for exceptions.Spouse B objectiveizes that some restrictions, orrules, entrust be needed on just when the decisions of spouse A will be interfered with. Spouse A in the story is, of course, intended to be close to analogous to a court of faithfulnesswhile spouse B represents a court of equity. While spouse B, or a court of equity, mightbegin with the simple nonion of doing what is fair, or providing a corrective to thenatural law, eventual(prenominal)ly some rules are created as to when a corrective coordinate will be provided. Thepremier would draft youthful writs for actions in the universals law courts only if by 1350 the vernacularality law courts had begun refusing new writs on the basis that they were non inconformity with the law. This led to to a greater extent than substantial bases for accu sit downions wherelitigants felt they could non get justice in the common law courts. It was in the context ofthese complaints that the premier began playing equity in the sense of a correctivejustice. For example, courts of law at the time took compose inscriptionation of a debt asirrefutable grounds that the debt was owed. ordinarily when the debt was paid thewritten document would be cancelled.Sometimes, however, the document was notcancelled and the lend er would claim again on the debt. Because the written documentwas irrefutable evidence of the debt, the debtor could not prove by other means that thedebt had been paid. The debtor could then file a circuit board with the Chancellor and provideother evidence that the debt had been paid. The lender would then be called upon toanswer a series of questions posed by the Chancellor. If the suspect (the lender) couldnot provide satisfactory answers the Chancellor would make an order telling thedefendant not to implement the taste received from the common law court.This cameto be known as a common cease and desist order. 5 3. Equity Follows the law and Acts in Personam Here one can see a couple of important things about equity. First, equity followsthe law. The Chancellor did not say the common law rule that written evidence of thedebt was irrefutable. That rule remained. thereof equity took the common law as go acrossn andsimply acted in response to decisions of the common law cour ts. This is sometimesreferred to as the rule that equity follows the law. Second, equity acts in personam. Theorder of the Chancellor did not create a publicationive right or a property right.If the Chancellor put in in favour of the plaintiff the Chancellor would make an order against thedefendant. 4. From Ecclesiastic Chancellors to Non-ecclesiastic Chancellors Until the early 16 th nose candy chancellors were bishops, archbishops or even cardinals. They were thus usually teach in Roman law and regulation law (perhaps lendingsome weight to the notion that the law of trusts whitethorn have had its origins in Roman lawand canon law concepts). after the early 16 th vitamin C chancellors were seldom ecclesiastics. By the mid 15 th one C (around 1430) a court of court of court of court of chancery was set up atWestminster. B. Development of the Law of subroutines and Trusts Objectives 1. descent the early form of the use. 2. locate and explain three ways in which the use was employed in its earlydevelopment. 3. respect the non- light of the use and one of the arrive ats of its non- credit rating. 4. shortly dispute the recognition of the use. 5. Discuss the reasons for the edict of Uses and its result. 6. note two word formulas that were used in an attempt to stay off the order of Uses andthe eventual recognition of these formulas. 7. Explain the reason for the passing of the systemize of Wills. . Uses Franciscan Friars, Crusades and the Form of the Use Uses and trusts was an area in which the Chancellor began ontogenesis a body ofsubstantial law. As state earlier, early forms of trusts may have include the concept ofthe use employed by donors to Franciscan friars or by owners of estates going on thecrusades. These early forms of trusts were expressed as conveyances to the use of some other. In other words, X would convey property to A to the use of B (use derivingfrom the Latin term opus, ad opus meaning on behalf of).In sum total to the possible 6 early employment of uses by Franciscan friars or in relation to the crusades, people cameto realize a number of other ways of employing uses to their advantage. 2. Other Ways in Which the Use was Employed a. To vacate the feudalisticisticistic Burdens of contenddship and Marriage For instance, the use could be employed to avoid the feudal burdens of wardshipand marriage. The male heir of a dwell under the age of 21 and the female heir of atenant under the age of 16 became the ward of the captain if the tenant died.The Lord tookthe lucre of the field until the child reached the age of 21 (or 16 in the case of a female)and had the right to determine the marriage of the child. This could be avoided byputting the land in the hands of ones friends, say A, B and C, for ones own use (i. e. Xconveys to A, B and C for the use of X). This way if X died the feudal burdens ofwardship and marriage did not gull to Xs children since X did not own the land (i. e. was no t the legitimately hire tenant). A, B and C were the legally recognise tenantsand it was they who owed the feudal burdens.If A died, however, As children did notbecome wards of the Lord because the rights in the land passed to B and C by right ofsurvivorship. b. To Avoid the Feudal Requirement of Forfeiture for artifice or Escheat for Felony Feudal land law required that the rights to land be chuck up the sponge for treason or wouldescheat to the Lord if the tenant commited a felony. This could be avoided by theemployment of the use since once X conveyed the property to others for the use of X, Xwould no longer be the legal owner (or tenant). thusly commition of treason or a felonycould not result in forfeiture or escheat since X had no property to forfeit. X, however, could still enjoy the profits or use of the land by virtue of the device of the use. c. To Avoid Creditors The use also allowed one to avoid creditors. X would convey to A, B and C to theuse of X. If creditors seek to claim the rights to the land as an asset of X, Xs simpleanswer was that the rights to the land did not belong to X. This was facilitated in theearly days not only by courts of aw not recognizing the use notwithstanding by the fact thatChancellor also did not, in those early days, blot the use. and so X had no legal titlethat the creditors could allow and also had no faithful title that the creditors could claim. d. To Effect Testamentary Dispositions of Land flirts of law held early on that one could not, on ones death, make a gift of landby testamentary longing. This was avoided by impartation the property during oneslife to another for the use of oneself and then, on death, to the use of those to whom onewished to make a gift.In other words, X would convey the property to A for the use of Xduring Xs life and then to the use of Y. 7 3. Non-recognition in Courts of Law or byt the Chancellor The use was not recognised in courts of law. Initially it was also not kno wby the Chancellor. Thus there was no legal mechanism for enforcing uses. It was grownuplya matter of honour and one had to rely on other mechanisms of enforcement phase of thanan order for damages from a court of law. On the other hand, it was the non-recognitionof the use in courts of law that gave it some of its advantages.For instance, theavoidance of creditors or feudal burdens depended on the law not recognizing the cestuique use as having any right or title to property enforceable in a court of law (or even an trusty interest fuckd in the Court of Equity). 4. Subsequent Recognition by Chancellor This reluctance of courts of law to enforce uses led to appeals to the index toenforce the use. Appeals to the might were made on the basis that the King was theresidual source of justice. The King could provide justice where the courts wereunwilling to (or unable to because the complaint did not fall within the recognized formsof action).Initially the Chancellor did not recogni ze the use besides, with an increasingnumber of complaints against faithless trustees, the Chancellor began to recognize usesby about the beginning of the 15th ascorbic acid (in 1420). The Chancellor would make anorder against the feoffee to uses (trustee) to comply with the obligations they had agreedto in favour of the cestui que use ( benefactive role). For example, if A conveyed land to B forthe use of C but B retained the profits of the land to himself C could complain to theChancellor.The Chancellor would call upon B to explain why he had kept the profitsand if he had no peachy explanation then he would be ordered to restore the profits to C(i. e. , what we would now call the remedy of accounting). The right of the cestui queuse was against the feoffee to uses and thus a personal (or in personam right) but later itwas held that these beneficial rights could be enforced against third parties other than abona fide purchaser without notice and thus the right of the beneficiar y came to lookmore like a proprietary (or in rem) right. 5. Later Statute of Uses to Prevent UsesThe recognition of the use by the Chancellor led to an increased employment ofthe use. The employment of the use to avoid feudal burdens led to a reduction in thefeudal rights to Lords, most notably to the ultimate Lord, the King. There was also theconcern that rights created through the use could be created without writtendocumentation (i. e. , orally or by an oral direction to the foeffee to uses). The Kingsresponse was to urge Parliament to pass the Statute of Uses in 1535. This statuteprovided that the person in whose favour the use was made became the legal owner of therights to the land.In other words, prior to the Statute of Uses when X conveyed to A for the use ofB, A was the legal owner of the land but it was to be used for the benefit of B. afterward theStatute of Uses when X conveyed to A for the use of B the conveyance to A was ignored 8 and the whole expression was treated as a conveyance directly to B. Thus B became thelegal owner. So lets go back to the employment of the use by X to avoid the feudal burdens ofwardship and marriage. X conveys to A, B and C for the use of X. This conveyance onlyoperated to convey property from X to himself and thus was no conveyance at all.Inother words, X could no longer avoid feudal burdens by the employment of the use. Xstill had the legal title to the land in go against of the purported conveyance. 6. Ways Around the Statute of Uses As suggested above, the use had a number of advantages. Not surprisinglyattempts were made to recapture its benefits despite the Statute of Uses. It was not long in advance creative ways were found to avoid the effect of the statute. Of the techniques ofavoiding the Statute of Uses perhaps the most important was the employment of a useupon a use.The use upon a use was effected by conveying A to B for the use of C in trust forD or A unto and to the use of B in trust for C. In the first phrase the Statute of Usesoperated to make C the legal owner of the land. But C held the land in trust for D. Courts of law did not recognize the moment use (or trust) since it was hideous to the use selected to C Tyrrels case (1557), 73 E. R. 336. Initially Courts of court of chancery alsoreconsolidated to recognize the second use. Courts of chancery, however,later came torecognize the second use in Sambach v.Dalston (1634), 21 E. R. 164. The effect of this was that the use was restored to its pre Statute of Uses statesimply by the addition of a few words in the form of conveyance. 7. The Statute of Wills One of the advantages of the use was to effect a testamentary disposition of rightsin land. With the regulation of the Statute of Uses, and before the recognition of the useupon a use, the use could no longer be employed to effect a testamentary disposition ofproperty. The apparent abolishment of the testamentary employment of the use was not wellreceived.It led to a rebell ion which resulted in the Statute of Wills in 1540 whichpermitted a person make a testamentary disposition of property. 9 C. Development of Equity and Trusts After 1550 From Conscience toEquity Objective curtly describe the development of Equity and trusts from 1550 to 1700. 1. maturement Popularity of Courts of Equity and Conflict with Courts of Law The early simplicity of procedure in chancery courts made them popular. Thenumber of matters brought before the court of chancery in the 16 th hundred grew significantly. This led to competition between court of chancery and common law courts.Judges in common law courts did not like the common injunctions issued by Chancerycourts. In Finch v. Throgmorton in 1598 3 Bulstr. 118 the validity of commoninjunctions was referred to all the judges of England and were articulate by them to beinvalid. Lord Chancellor Ellesmere keep to issue common injunctions. Lord coulomb,who became honcho justice of the Court of Kings Bench in 1613, crit icized commoninjunctions claiming that the tendency of courts of equity to re-examine common law popular opinions and to issue orders against the enforcement of common law judgments tendedto subvert the common law.In Heath v. Ridley in 1614 2 Cro. 335 Lord one C broughtthe issue to a head when he refused to accept a common injunction issued by LordEllesmere. The King ruled in favour of Lord Ellesmere and Lord Coke was laterdismissed from office. 2. Courts of Equity Survive the genteel War and Removal of the Monarchy After the English Civil War in the 1640s and 1650s Parliament voted in favour ofthe abolition of the court of chancery (in part because of its close association with themonarchy) but the House could not agree on legislation to transfer chancery jurisdictionto the common law courts.Thus the court of chancery survived through to the restorationof the monarchy. 3. Seventeenth Century Developments Equity as a Body of significant Law By the late seventeenth century the ro le of Chancery was expanding with suss out overwardship and the development of fiducial guardianship, the equity of redemption, andassignment of choses in action. In other words, the court of chancery was developing itsown substantive law. The court was applying equity as a body of substantive law ithad developed and was less the court of conscience it had been in the past.Many developments in equity came to be reflected in the common law itself oftenthrough legislation (e. g. Statute of Wills), but sometimes by common law courtsborrowing concepts from equity. The development of reporting of Chancery decisionsafter 1660 contributed to the development of a body of principles of equity. By the endof the seventeenth century the court of chancery had developed concepts such as the equity ofredemption and the assignment of choses in action. 10 The way the trust was being used was also changing.By the late 17th century thetrust was being used not just to hold property but to manage prope rty by giving trusteeswide powers to manage the property, cleanse it, mortgage land, pay off debts, provideincome for widows and dependants, prepare children, etc. D. Equity and Trusts, 1700-1900 Disaffection, Reform and federationObjective Briefly describe the development of Equity and trusts from 1700 to 1900. There were developments of equity in the 18th century. Equity was the mainsource of protection of copyrights and trademarks since these could be protected throughthe equitable remedy of injunction. Equity was becoming more and more a body ofsubstantive law rather than just a parade of equitable maxims. The 18 th century also saw the development of of the military control trust in part inresponse to the blather Act of 1720 that had prohibited an early predecessor to thecorporation referred to as a joint nisus company (which was really a large partnership). Trusts in the 18 th century increasingly took the form of a farm animal of investments, such asstocks and bonds, that the trustee would administer for the benefit of others rather thanbeing used primarily for the prop of land.However, growing adjectival complexity caused the court of chancery to becomeincreasingly slow and inefficient resulting in a reduction in cases. The Chancellor dealtwith all cases directly. Proceedings were done by way of written interrogatives followedby written depositions in response. Copies were made for all parties and werehandwritten by law writers. Fees were paid instead of salaries which gave personsinvolved an incentive to draw out proceedings. The slow process was remarked on by aToronto lawyer (Skivington Connor) in 1845 concerning the process of the court ofchancery in Ontario at the time, Thats the barter I like, the pace slow and dignified, the pay handsome, and agentlemanly understanding among practitioners to make it handsomer. There was some response to the slow pace of the court of chancery prior to the enactmentof the Judicature Act of 1873. In 18 13 a vice-chancellor was appointed. A Court ofAppeal in Chancery was created in 1851 and the Court of Chancery was given powers touse juries to try facts. Similarly in the 19 th century common law courts were given powers to grant injunctions and admit equitable defences.Thus there was somemovement toward amalgamation of courts of law and courts of equity. Eventually the Court ofChancery was abolished in 1873 and the common law courts took over the administrationof both the common law and equity. 11 III. HISTORICAL DEVELOPMENT OF EQUITY IN CANADA Objectives Be able to in brief skin senses the history of the exercise of equitable jurisdiction in the Atlantic lands, Ontario, Quebec, the West and the northeastward. The reception of equity jurisdiction in Canada varied from province to province inthe eastern provinces.The timing of the declaration in and creation of most of the westsideernprovinces was in the latter part of the 19 th century when the merge of courts of law and cou rts of equity was already being considered in England. A. Atlantic Provinces In Nova Scotia the Governor, as Keeper of the nifty Seal, exercised equityjurisdiction (as early as 1751 when the first bill in equity was filed). This approach wasextended to Prince Edward Island and young Brunswick when these colonies were created(in1769 and 1784 respectively). In Nova Scotia matters were decided on the advice of acouncil until 1764.In 1764 three know in Chancery were appointed to assist theGovernor. Initially these Masters in Chancery were not legally trained but by later in the19th century legally trained masters of the rolls were appointed in Nova Scotia, NewBrunswick and Prince Edward Island. The group meeting of law and equity jurisdiction occurred in New Brunswick and NovaScotia well before the enactment of the Judicature Act in England in 1873. In NewBrunswick in 1854 and in Nova Scotia in 1855 the position of master of the rolls wasabolished and equity jurisdiction was transfer red to the despotic Court.The merging ofcourts of law and courts of equity in Prince Edward Island did not occur until 1974. Newfoundland did not follow the model of the Governor workout equityjurisdiction. Instead equity jurisdiction was exercised by the Supreme Court and thispractice was later codified in 1825 (almost 50 years before the merging of courts of lawand courts of equity in England). 12 B. Ontario and Quebec Quebec Equity jurisdiction lasted only briefly in Quebec. From the Royal Proclamationof 1763 the Governor of Quebec sat as Chancellor until Quebec Act of 1774 restored thecivil law system to Quebec.Ontario Governors in Ontario, curiously, refused to exercise equity jurisdiction. It hasbeen suggested that this may have been due to printing press from lenders since without theexercise of equity jurisdiction there would be no equity of redemption in favour ofdebtors. Eventually pressure from debtors mount and a legislative form of equity ofredemption was adopted. Th e establishment of a Court of Chancery followed shortlyafterwards in 1837. This may have been in response to pressure from lenders again.Thelegislature having created a legislated equity of redemption for borrowers, the lendersmay have wanted to have the corresponding right of foreclosure which was also adevelopment of equity cutting off the right of redemption after a reasonable period oftime. The Ontario Court of Chancery was later abstracted into High Court of Ontario in1881. C. The West and North When courts were being established in the west and north the move towardsunifying courts of law and equity was well advanced. Thus when courts were establishedin these jurisdictions they were given jurisdiction over both law and equity.It was,however, the practice in Manitoba and British Columbia to have divisions of the courtwith a division administering law and another division administering equity with theusual restrictions on courts of law not being able to give equitable remedies. Later thesedivisions were abolished (e. g. , in Manitoba in 1895). 13 IV. FUSION Objectives Be able to (i)Distinguish between procedural and substantive concepts of conglutination. (ii) interpret an example of the potential practical effect of the distinction. (iii) Briefly discuss the current status of the debate over the optical fusion of law and equity.A. Procedural vs. Substantive Fusion What did the Judicature Act in England in 1873 do? Did it merge the rules employ by courts of law and the rules apply by courts of equity into a ace body oflaw? Or did it simply allow for court proceedings to be started in one court that hadjurisdiction to apply rules of law and rules of equity without any formal merging of thetwo bodies of rules? In other words, did it provide for substantive fusion or proceduralfusion? Substantive fusion means that the rules of law and equity are merged into a singlebody of rules.Procedural fusion means that one can apply to a single court undermentione d asingle court procedure and that court could administer both rules of law and rules ofequity and apply remedies of the sort that were formerly available in all a court of law(e. g. damages) or a court of equity (e. g. injunction, specific performance, accounting). The disagreement is often captured by the Ashburners Principles of Equity (London Butterworths, 1902) so-called fluvial metaphor The two streams of jurisdiction, though they run in the same(p) channel, run side byside and do not mingle their waters.In that metaphor law and equity are perceived as two separate streams (courts) that cometogether (in one court). Ashburners instruction using the fluvial metaphor says that thefusion was procedural only. In other words, the two streams came together but the watersof the two streams (rules of law and rules of equity) did not intermingle but ran side byside in the same channel (i. e. could be applied by the same court). In the metaphorsubstantive fusion is perceived as an int ermingling of the water from the two streams intoa single integrated stream.The Judicature Acts dealt with some areas of conflict and provided a general rulethat where rules of law conflicted with rules of equity the rules of equity were to prevail. Cases Walsh v. Lonsdale (1882) United Scientific Holdings v. Burnley Council, 1978 A. C. 904 (H. L. ) 14 Fusion resulting in equity prevailing over common law or was it in fact common lawprevailing over equity LeMesurier v. Andrus (1986) Ont. C. A. B. An sample of the Practical Legal Effect Canson Enterprises Ltd. v. Boughton 1991 3 S. C. R. 534 In Canson Enterprises Ltd. . Boughtonthe plaintiff had purchased land and thenbuilt a warehouse on the land. The warehouse was naughtily damaged when thesupporting piles began to sink. The plaintiff successfully sued the engineers but theyturned out to be judgment proof. The plaintiff then sued its canvasser who had made a secret profit from the purchase of the land. They claimed that as a sc rutineer the solicitorowed them a fiduciary employment not to make a secret profit from a transaction in which thesolicitor was acting on behalf of the plaintiff as purchaser.That claim was based onprinciples developed by courts of equity which had long held solicitors to owe fiduciaryduties to their clients and had force on the fiduciary duty principles they had developedin the context of trustees in stage setting out the scope of a solicitors fiduciary duties. The defendant solicitor claimed that while he would be required in equity toaccount for the profit he had made he would not be liable for the damages to thewarehouse (which were much greater than the secret profit) because his secret profit didnot ause the sledding to the plaintiff from the damage to the warehouse. The plaintiff arguedthat since the claim for breach of fiduciary duty was a claim in equity principles such as remoteness, mitigation, and causation which were principles developed by courts of law,did not ap ply. In other words, the plaintiff was tell that there was procedural fusiononly. If a claim was based on principles that had been developed in courts of equity thenthe applicable rules were only those drawn from developed by courts of equity not thosedeveloped by courts of law.C. The Current Status of the Fusion Debate A majority of the Supreme Court of Canada held that there was no real distinctionbetween damages in a common law claim and equitable stipend in a claim unfairness and thus common law concepts of remoteness and causation could be used inassessing the remedy. In other words, they did not stick the solicitor with the fulldamages to the warehouse. Madam Justice McLachlin, as she was then, felt that theresult could be reached on equitable principles with respect to equitable compensation.Neither the majority judgment nor the judgment of Madam Justice McLachlin make itclear whether law and equity were substantive fused or merely procedurally fused. Theyboth seemed to fe el that the exercise of common law principles and equitableprinciples in the point case were consistent so their was no need to draw on commonlaw principles into an equitable claim. However, Madam Justice McLachlin did note thatwe may take wisdom from where we find it, and accept such insights offered by the lawof tort, in particular deceit, as may prove useful. It thus appears that where there is aconflict one the court will resolve it with broader policy considerations. 15One should thus be alert to the potential differences between rules of law andequity and how they may impact the result but also be ready to argue for a particularresult from a policy scene (much as the plaintiffs did in Canson by lean that toensure that fiduciaries are held to high ethical standards they should be strictly liable forall losses streamlined from a breach of duty).