equitable remedies: fall 2009 - LSS | Cans DB

EQUITABLE REMEDIES: FALL 2009 Prof: Tony Sheppard
Prepared by: Kate Phipps
EQUITABLE REMEDIES: FALL 2009 1
Prof: Tony Sheppard 1
Prepared by: Kate Phipps 1
Chapter 1: The History of Equity 3
Maitland, the History of Equity, Lecture 1 3
Maitland, the Origin of Equity, Lecture 2 4
Dickens, Bleak House 5
Aristotle on Equity 5
Billson, Equity in its Relations to Common Law 5
In Re: MacDonald 5
Summary of Historical Role of EQ: 5
Fusion of Law & Equity 6
Equitable Maxims 6
Chapter 2: The Introduction of Equity into British Columbia 6
Fusion in BC 6
Fusion of Substantive Law? 6
Pre-Fusion v. Post-Fusion 6
Law & Equity Act 7
Common Law v. Equity 7
United Scientific Holdings Ltd. v. Burnley Borough Council 8
Views on the Effect of Fusion 8
Canson Enterprises Ltd. v. Boughton & Co. 8
Cadburry Schweppes Inc. v. FBI Foods 8
Chapter 3: The Continuing Distinctions between Law and Equity 9
A.) Illustrations of Equitable Interests 9
Subpoena 9
Common Injunction 9
Specific Performance 9
Injunctions 9
Equitable Damages/Compensation 9
Decree 9
B.) Equity Acts in Personam: Territorial Jurisdiction 9
Penn v. Lord Baltimore 9
West & Partners (Inverness) Ltd. v. Dick 10
Acrow v. Rex Chainbelt 10
Colettis v. Colettis 10
Barrick Gold Corp. v. Lopehandia 10
Limits on Jurisdiction 10
Law & Equity Act- Vesting Orders 11
Enforcement of Canadian Judgments and Decrees Act 11
Pro Swing Inc. v. Elta Golf Inc. 11
Chapter 8: Certain Equitable Defences 12
A.) Laches, Delay, Acquiescence 12
I.) the general rule 12
Maxims 12
Laches 12
Acquiescence 12
Delay 12
Lindsay Petroleum Co. v. Hurd 12
Erlanger v. New Sombrero Phosphate Co. 13
II.) the length of delay 13
Canada Trust v. Lloyd 13
III.) the knowledge of the parties 13
M.(K.) v. M.(H.) 13
Wewaykum v. Canada 13
IV.) Vigilantibus non dormientibus aequitas subvenit, or equity aids the
vigilant, no the indolent 14
General 14
Blundon v. Storm- Partial laches, Partial recovery 14
AG Nova Scotia v. City of Halifax 14
Chitty: The Law of the Prerogative of the Crown 15
Cadbury Schweppes Inc. v. FBI Foods Ltd 15
V.) estoppel 15
Trethewey-Edge Dyking District v. Coniagas Ranch 15
B.) Clean Hands 15
General 15
City of Toronto v. Polai (Ont. H.C.) 15
City of Toronto v. Polai (Ont. C.A.) 16
City of Toronto v. Polai (S.C.C) 16
Tinsley v. Milligan 16
Chapter 9: Injunctions 17
A.) General & Historical 17
General 17
Classification of Injunctions by Results 17
Classification of Injunctions by Stage of Proceedings 18
Classification of Injunctions by Duration 18
B.) The Interlocutory or Interim Injunction 18
I.) general: 18
Law & Equity Act, s. 39: Injunction or mandamus may be granted or
receiver appointed by interlocutory order 18
BC Supreme Court Rules 19
II.) ex parte interim (requirements of urgency, full & frank disclosure)
20
General: 20
Gulf Islands Navigation Ltd. v. Seafarers International Union et al. 20
III.) requirements for obtaining an interlocutory or interim injunction 21
General 21
American Cyanamid Co. v. Ethicon Ltd 21
MacMillan Bloedel Ltd. v. Michael Mullin et al. 22
BC (AG) v. Wale 22
RJR Macdonald v. Canada (AG) (1994, SCC) 23
BMWE v. Canadian Pacific Ltd (1996, SCC) 24
BCGEU v. BC(AG) 24
IV.) Negative Covenants 24
General 24
Doherty v. Allman 24
Cascade Imperial Mills Ltd v. Lindsay 24
V.) Constitutional Cases 25
General 25
Manitoba (AG) v. Metropolitan Shoe Stores Ltd. (1987, SCC) 25
VI.) Libel & Slander 25
General 25
Church of Scientology of BC v. Radio NW Ltd et al. 26
VII.) Mareva Injunctions 26
General 26
Aetna Financial Services Ltd. v. Feigelman et al 26
VIII.) Anti-Suit Injunction 27
General 27
Amchem Products Inc. v. BC (WCB) 27
IX.) Anton-Piller Order 28
General 28
Celanese Canada Inc. v. Murray 28
Fila Canada Ltd. v. Jane Doe- Rolling AP order 29
X.) Norwich Pharmacal Order 29
Norwich Pharmacal Case 29
BMG Canada Inc. v. John Doe 29
C.) Intellectual Property/Breach of Confidence 30
Cadbury Schweppes Inc. v. FBI Foods Ltd. 30
C.1.) Contracts of Personal Service 31
General 31
Warner Bros v. Nelson 31
Hill v. Parsons & Co 31
D.) The Mandatory Injunction 32
General 32
Kennard v. Cory Bros and Co. Ltd.- Broad Orders Not Enforceable 32
Doucet-Boudrea v. Nova Scotia 32
Hedstrom v. Manufacturers Life Insurance 32
E.) The Expropriation Doctrine 33
General 33
Nuisance- more willing to grant compensation instead: Rombough et al. v.
Crestbrook Timber Co 33
Trespass & Encroachment: Property Law Act s. 36 33
F.) Quia Timet or Anticipatory Injunction 33
General 33
Redland Bricks Ltd. v. Morris- Consider the cost to the D 34
G.) The Delayed Injunction 34
General 34
Charrington v. Simons and Co. Ltd 34
Harper v. Canada (AG)- TEST for stay of injunction pending appeal 35
H.) The Enforcement of Legislation 35
General 35
City of Toronto v. Polai 36
Kent District v. Storgoff and AGBC 36
Provincial Rental Housing Corp. v. Hall 36
AGBC v. Couillard and Alexander et al 36
AG v. Blake 37
BCGEU v. BCAG 37 Chapter 1: The History of Equity
Maitland, the History of Equity, Lecture 1 . At the head of the chancery stands the Chancellor, usually a bishop, who
is the king's secretary of state for all departments.
. A man who wished to begin an action had to go to the Chancery to obtain a
writ.
. The Chancellor did not hear both sides of the story, he only heard the
P's application, and if h grants a writ the courts of law may afterwards
quash that writ as being contrary to the law of the land
. Those who cannot get relief elsewhere present their petitions to the king
via the chancellor praying for some remedy
. Types of actions that could be brought before the chancellor:
o As against the king
o Complaints that cannot be remedies in the ordinary course of
justice/ court of law. The procedure consists of:
. The chancellor considers a petition,
. Orders the adversary to come before him and answer the
complaint (a subpoena) upon pain of forfeiting a sum of
money if he doesn't show up
. They tell the defendant what the cause of action against
him is, and he is to answer why he acted as he did, on
oath.
. The chancellor would decide questions of fact and law.
. Eventually, the chancellor was warned off the field of the common law,
but had a procedure well adapted to enforcing uses, trusts, or
confidences
. By 16th Century, chancellors were administering "the rules of equity and
good conscience." Did not consider themselves bound by precedent. They
instead based their decisions from analogy drawn from the CL or maxims of
jurisprudence borrowed from the canonists of the civilians.
. Eventually Chief Justice Coke decided that the Court of Chancery was to
have the upper hand over courts of law.
. Chancellor's decisions weren't addressed to the judges, but to the party.
It could prevent men from going to the courts.
. By the time of the Restoration, Equity was established as a busy, and
proper, court. As many as 16,000 causes were pending before it at any one
time. Maitland, the Origin of Equity, Lecture 2 . At first, court of equity would follow the law, but a court of CL would
take take no notice of EQ.
. Court of Equity was granted the authority to give damages, and the courts
of law were enabled in certain cases to grant injunctions.
. Judicature Acts of 1873 & 1875:
o Old courts were abolished, and replaced by a High Court of
Justice with a Court of Appeal above it.
o Judges would now have to take notice of all aspects of the law.
No judge could say "This is a matter of the CL and not within
the cognisance of EQ court" and vice versa
o Stated that where there is a conflict between law and equity,
equity will prevail
. Conflict between law & Equity:
o There are rarely any cases in which CL and EQ conflict.
o This is because equity did not come to destroy the law, but to
fulfill it.
o Equity serves as a gloss on the common law that makes it more
fair
o Equity was no a self-sufficient system, and at every point pre-
supposed the existence of the CL.
o Different areas of the law have greater glosses than others.
Property, for example, has a high gloss, where criminal law has
none.
. The day will come when we will no longer ask whether a given rule is one
of equity or CL: suffice that it is a well-established rule administered
by the High Court. Dickens, Bleak House . An example of how the court of equity, at one point, was too bogged down
by procedure and took too long to deal with various issues.
. Case, Jarndice and Jarndice, drags on over the reign of several
chancellors, etc. Aristotle on Equity . Equity serves as a correction on legal justice
. The law is not always just, because it is universal, but about some
things it is not possible to make a universal statement that will be
correct in all circumstances. Sometimes an individual decree is
necessary.
. Equity corrects the omission, to say what the legislat