Equity's Maxims as a Concept in Canadian Jurisprudence

22 Pages Posted: 19 Jan 2016

See all articles by Jeff Berryman

Jeff Berryman

University of Windsor - Faculty of Law

Date Written: 2012

Abstract

In Pro Swing v Elta Golf Inc the Supreme Court of Canada made passing reference to the functions of equity’s maxims. Other courts have made similar references; indeed, judicial mention of equity’s maxims occurs quite frequently. This is surprising given the dearth of academic commentary on equity’s maxims, and that little mention of the maxims now takes place in Canadian law school curricula. In contrast, open any of the equity texts of the 1800s and significant attention is accorded to equitable maxims. This article seeks to explore whether the concept of equity’s maxims, as against the content of the individual maxims themselves, serves any real purpose today. It starts by providing an historical evolution of the notion of equity’s maxims, noting in particular that they are now largely ignored in the United States of America but still have topicality, to widely varying degrees, in Commonwealth jurisdictions. It then explores three divergent functions that have historically been served by equity’s maxims. Next, it turns to three roles that may be fulfilled by equity’s maxims today. It concludes that equity’s maxims serve a minimal function today. They do, however, preserve the distinctness of equity’s methodology from the common law and do allow some explicit dialogue on morality and ethics in those areas of private law where equity still plays a significant, determinative role.

Suggested Citation

Berryman, Jeffrey, Equity's Maxims as a Concept in Canadian Jurisprudence (2012). Ottawa Law Review, Vol. 43, No. 2, 2012, Available at SSRN: https://ssrn.com/abstract=2717801

Jeffrey Berryman (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

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