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Foreword

Justice Russell Brown

Supreme Court of Canada
After last year’s successful inaugural issue of the Canadian Journal of
Comparative and Contemporary Law (CJCCL) dedicated to “Health Law
and Human Rights”, I am honoured to provide this brief forward to the
CJCCL’s second issue, containing papers exploring the theme of “Equity
in the 21st Century: Problems and Perspectives”.
As a theme, “equity in the 21st century” is intriguing. At first glance,
one might suppose that “equity” and “21st century” are as suitably
juxtaposed as “Thomas Aquinas” and “emoji”. While its origins are
murky, we know that equity emerged long ago from the administrative
power of the mediaeval Chancellor, to whom the King had delegated
the task of hearing pleas from his subjects concerning injustices at the
common law courts. As most law students also know, the Chancellor, as
an ecclesiastic, was concerned with conscience (wherein lay the path to
the immortal soul). It was therefore on the basis of “conscience” that he
exercised this delegated remedial power by ordering respondents to act
according to good conscience, notwithstanding their legal rights to do
otherwise.
This account — while accurate — risks, however, descending into
caricature in several respects. First, common law courts were not amoral
wastelands. Still, their limited forms of action could work injustice. Clear
rules were preferred over avoiding hardship. John H Baker’s famous
example of the paid debt that must be paid a second time (owing to
the debtor’s failure to ensure the debt was cancelled after it was paid the
first time) illustrates the sort of problem that typically arose.1 Secondly,
while the Chancellor’s jurisdiction ultimately widened from the “wide

1.

John H Baker, An Introduction to Legal History, 3d (London:
Butterworths, 1990) at 118.

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but vague”2 powers wielded during the Middle Ages, the Chancellor’s
conscience-based jurisdiction soon narrowed, as the stream of ad hoc
decisions were inevitably reduced to rules or principles of equity which,
by the late 18th century, were as inflexible and prone to working injustice
as the common law itself. By the mid 20th century, the English Court
of Appeal could unashamedly proclaim in Re Diplock that it lacked
jurisdiction to do equity on the mere basis that “we may think that the
‘justice’ of the present case requires it”.3
As the latter half of the 20th century showed, however, equity had
not rolled over and died. As Leonard I Rotman argues in his article on
the Supreme Court of Canada’s understanding of the fusion of law and
equity, in recent decades equity has brought the positive law “closer
to the human condition”. Longstanding devices such as resulting and
constructive trusts, injunctions and estoppel were extended, and the
action in unjust enrichment (assuming it can truly be understood as
“equitable”) was pulled from its post-Moses v Macferlan4 obscurity. Courts
have breathed new life into equity’s concern for the conscientious exercise
of legal rights in property and under terms of contracts. Concerns for
“fairness” and “justice” have predominated.
A more muscular equitable doctrine to quell “unfairness” and
“injustice”, however, raises its own set of concerns, none of which are
new. Is equity really nothing more than a body of sentimental goo to
be haphazardly applied when the spirit of fairness and justice moves us?
Or should the conditions calling for its intervention be stated (if they
can be stated) precisely and exhaustively? The obvious criticism is that
a purely “I-know-unconscionability-when-I-see-it” approach is nothing
more than palm tree justice. Equity would lack intelligibility, clarity and
predictability in application, thereby implicating basic norms of the rule
of law.5 Little wonder Professor Donovan Waters used to warn his trust law
2.
3.
4.
5.

Paul Vivian Baker & Peter St John Hevey Langan, Snell’s Equity, 29d
(London: Sweet & Maxwell,1982) at 8.
Re Diplock, [1948] Ch 465 at 481 (CA (Eng)), aff’d sub nom Ministry of
Health v Simpson, [1951] AC 251 (HL).
(1760), 97 ER 676 (KB).
Tom Bingham, The Rule of Law (London: Penguin Group, 2010) at 37.

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students against distorting the remedial constructive trust’s consciencebased origins by taking it “too far”. That seems fair. Nobody committed
to equity’s public repute wants to see a new maxim proclaiming equity
(or the remedial constructive trust) to be the last refuge of a scoundrel.
At the same time, there has been no expressed appetite for a return to the
rigid systematization that made Re Diplock possible.
This tension is never far from the surface in this splendid collection
of essays. For example, Alastair Hudson maintains that we err by
treating the organizing principle of “conscience” as an entirely subjective
phenomenon, as opposed to the product of objectively constituted
sources of normative behaviours. And, although not directly addressed to
the subjective-vs.-objective dichotomy, Sarah Worthington’s paper seeks,
by way of analysis of the proscriptive rules which equity imposes upon
fiduciaries, to bring principle to determining who is a fiduciary (fellow
Canadians, please pay attention!6), the obligations they owe, and the
remedies which flow from a breach. In contrast, Hila Keren, in lamenting
“the fall of equity”, strikes a more subjective note by celebrating (or,
more accurately from her standpoint, commemorating) equity’s “noneconomic” priorities of “morality, fairness, justice or equality”. The other
papers implicitly presume that conscience is either an objective reference
point, or that — if it has a subjective dimension — such subjectivity need
not defeat clear thinking and rational rule-making in equity. Richard C
Nolan’s article demonstrating the importance of inherent jurisdiction to
the administration of trusts celebrates the innovative judicial extension
of that jurisdiction, for example, to give directions where the trustee
is caught between competing groups of holders of notes issued under
the terms of a trust deed. At the same time, though, he calls for greater
attention to identifying a theoretical basis for deciding when a court
can or cannot exercise inherent jurisdiction in this fashion. Mark Gillen
espouses more radical reform of trust law by providing for enforcement
of certain non-charitable purposes trusts — not, however, by way of a
subjective act of judicial discretion, but by way of legislative intervention.
Nolan and Gillen’s papers are also representative of a distinctly
6.

CA v Critchley (1998), 60 BCLR (3d) 92 (CA) at para 75.

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pioneering flavour to the collection — not inappropriately, given the
21th century theme. They are joined in this respect by Irit Samet’s
consideration of whether the law should abandon caveat emptor to
permit rescission for unilateral mistakes in contract formation, and
of whether equity is the appropriate vehicle to effect such a reform;
Matthew Harding’s deep reflection about discriminatory public trusts,
whether judges should prefer the threshold of “public benefit” over
“public interest”, and the place of the value of freedom of disposition
under each threshold; Kathryn Chan’s argument for reinvigorating the
Federal Court of Appeal’s equitable jurisdiction over registered charities
by invoking certain curative principles oriented towards effectuating
imperfect charitable gifts; Paul Davies’ consideration of whether the rules
of equitable compensation should follow those available for breach of
contract, for negligence, or for other torts; and David Wiseman’s account
for the possibility that equity might prefer a beneficiary-protection
power over a beneficiary-direction rule in the context of joint bank
account resulting trusts. And, appropriately enough (given this Journal’s
dedication to comparative law), Graham Virgo seeks to harmonize
the Australian and Canadian remedial constructive trust with the
institutional (substantive) constructive trust in England, while Margaret
Hall considers the applicability to Canadian law of a recent English
judicial innovation, rooted in the equitable doctrine of undue influence,
for disrupting relationships that exploit children and mentally incapable
adults. At a more general level, Justice Mark Leeming shows why equity
is especially suited to comparative analysis, comprising themes which are
familiar to jurists throughout the common law world.
Breaking new ground can, however, be difficult work, and the results
are not always universally embraced. Robert Chambers shows how, over
several decades of debate about liability for knowing receipt of assets
transferred in breach of trust or fiduciary duty, various accounts for such
liability have been advanced — from unjust enrichment, to failure to
perform a duty to restore the misapplied trust property, to Chambers’
admirably plain-spoken and persuasive argument that knowing receipt
is itself a breach of trust. Any resort to “waiver of tort”, once hoped to
be equity’s elixir for overcoming indeterminate causation in mass tort

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claims,7 must now account for Craig Jones’ account of its limits. Stephen
Watterson explores the residual uncertainties in the wake of the House
of Lords’ decision in Banque Financière de la Cité v Park (Battersea) Ltd,8
following which English law has had to sort out what it means to say
that subrogation to extinguished rights (usually held by a disappointed
unsecured creditor or by a lender whose funds were misappropriated to
discharge another’s liabilities) is not only a remedy, but one that is also
equitable and restitutionary. And as Mitchell McInnes’ essay on beneficial
services in respect of land shows, the implications of expanding the scope
for equitable relief — in that particular case for relief under proprietary
estoppel — are often insufficiently examined, both before and after the
fact.
Our legal community, howsoever one chooses to define it (Western
Canadian, Canadian, Anglo-American, common law), owes a debt of
appreciation to Thompson Rivers University’s Faculty of Law on this
initiative — the CJCCL, with its worthwhile themes and its first-rate
content. The essays contained in its second issue deserve wide circulation
among practicing and academic lawyers and, of course, among judges
charged with doing equity. As one who has profited from reading them,
I offer my thanks and congratulations to all concerned and, in particular,
to the authors and to the CJCCL’s editorial team.

7.
8.

Serhan (Estate Trustee) v Johnson & Johnson (2004), 132 ACWS (3d) 221
(Ont Sup Ct).
[1999] 1 AC 221 (HL).