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UBC Theses and Dissertations
The future of remedies : Moving beyond divided legal and equitable remedies in Canadian law Lynch, Lorna
This work examines the scope of the divide between legal and equitable jurisdictions in Canadian law. It focuses in particular on the divide between legal and equitable remedies, which continues to mold the remedial approach in modem Canada. It is concluded is that the strict separation between legal and equitable remedies is detrimental to legal evolution. The judicial system must strive to serve justice by embracing a flexible and responsive remedial approach. The retention of a division between law and equity inhibits the legal response to the demands of an evolving society. Arguments based in history no longer justify a restrictive and divided remedial jurisdiction. It is accepted that history and precedent cannot be abandoned altogether. A division between law and equity must be maintained on some level but the scope of this division needs re-evaluation. The distinction between legal and equitable rights does not in itself necessitate a division in remedies. Rather, it is time to move towards a flexible framework of remedies, which is responsive to the particular circumstances of the dispute, irrespective of the historical origins of particular measures. It is noted in Chapter 1 that a remedial approach influenced by an intermingling of legal and equitable principles, is evident in recent Canadian jurisprudence. In particular, a resurgence of equitable themes and the expansion of specific equitable remedies, has occurred. Therefore, it is the aspects of equity's remedial jurisdiction that are focused on in the body of this work. Chapter 2 provides a brief historical outline of the origins of equity's remedial jurisdiction. This outline highlights the equitable themes, which retain significance in a modem context and must shape the remedial approach of the future. In the latter half of Chapter 2 the fusion of the administration of law and equity under the Judicature Acts is examined. It is concluded that a mingling of legal and equitable doctrine has occurred in the wake of this fusion and remedial law must embrace this development. The Canadian judiciary has taken some active steps towards breaking down the divide between legal and equitable remedies. These steps are identified in Chapters 3 and 4, with reference to the evolution of the constructive trust and equitable compensation respectively. These remedies have expanded beyond their historical limitations and have mingled with legal doctrine. The jurisprudence supports a flexible remedial approach that rejects the strict confines of history. It is concluded that a move beyond the divide between legal and equitable remedies must not be resisted. Remedies must be loosened from their historical anchors to shape a responsive remedial approach in Canadian law.
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