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Equitable Jurisdiction and the Court of Chancery in Upper Canada Elizabeth Brown

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Equitable Jurisdiction and the Court of Chancery in Upper Canada Elizabeth Brown Osgoode Hall Law Journal Article 5 Volume 21, Number 2 (September 1983) Equitable Jurisdiction and the Court of Chancery in Upper Canada Elizabeth Brown Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Brown, Elizabeth. "Equitable Jurisdiction and the Court of Chancery in Upper Canada." Osgoode Hall Law Journal 21.2 (1983) : 275-314. http://digitalcommons.osgoode.yorku.ca/ohlj/vol21/iss2/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. EQUITABLE JURISDICTION AND THE COURT OF CHANCERY IN UPPER CANADA By ELIZABETH BROWN* The courts of common law and equity in Ontario were fused to create one Supreme Court of Judicature in 1881. In this new court, equity prevailed over common law and the procedure adopted drew more from Chancery than from common law practice. Earlier in the century, this triumph of equity would have been predicted by very few. Although the need for equity to complement the common law had always been recognized, the traditional administration of a separate court of Chancery was unpopular. Therefore, the introduction of equity into the province had been delayed for many years, despite the harsh legal consequences this entailed. In 1837, a court of Chancery was established, but as John Spragge, later Chancellor of Upper Canada, noted "[I]t was from no love of a Court of Chancery that it was introduced, but in spite of many and strong prejudices." IThese prejudices were understandable. A commission established in 1843 to investigate the Court reported: There was probably an apprehension not ill-founded, that expense and other in- conveniences, which would be hard to bear, and yet not easy to obviate, would follow the introduction of any thing like the English Courts of Equity, and this may have restrained the Legislature- from making any attempt of the kind before the year 1837.2 At first the Court lived up to the dismal reputation of its British counter- part; by the 1860s, however, many of the problems had been resolved. By then momentum was building for the reform that culminated in the JudicatureAct of 1881. Given the hostility directed towards the Court of Chancery, it may seem strange that the province waited until 1881 to effect fundamental reform, but there were profound conceptual and practical objections to such a move. To those educated in the English legal tradition it was unthinkable that law and equity could be dispensed from the same court. One legal historian has remarked: The notion of this separation, despite its accidental origin, had been so bred into the bone of the legal profession ... that it wore the aspect of3 something declared by nature, something integral to the processes of civil justice. As the century progressed the conceptual difficulties diminished, only to be replaced by a more practical concern with amalgamation of the widely differ- © Copyright, 1983, Elizabeth Brown * Elizabeth Brown is a member of the Ontario bar. I Spragge, A Letter on the Subject of the Courts ofLaw of UpperCanada Address- ed to the Attorney-Generaland Solicitor-General(Toronto: Scobie & Balfour, 1847) at 12. 2 Journalsof the LegislativeAssembly of the Provinceof Canada, 1844-45, Appen- dix J.J. 3 Millar, Civil Procedure of the Trial Court in HistoricalPerspective (New York: National Conference of Judicial Councils, 1952) at 32. OSGOODE HALL LAW JOURNAL [VOL.21, NO.2 ing practice and procedure of the two courts. This difficulty seemed so insur- mountable that fusion in Ontario would have been delayed even longer had it not been for the impetus provided by the English union of the jurisdictions in 1875. After the creation of Upper Canada in 1791, the first act of the new legislature was to provide that "in all matters of controversy relative to prop- erty and civil rights, resort shall be had to the Laws of England." 4 In 1794, the courts of Common Pleas were abolished and replaced by the Court of King's Bench, which was given "all such powers and authorities as by the law of England are incident to a Superior Court of civil and criminal jurisdiction." 5 Thus the common law was introduced into the province. However, no similar provision was made for equity. In some ways this is surprising because Lieutenant-Governor John Graves Simcoe was fervently British and William 6 Osgoode, the first Chief Justice, had been an English Chancery practitioner. Both, arguably, might have welcomed equity. Riddell suggests that had Osgoode not become Chief Justice of Lower Canada in 1794, he would prob- ably have attempted to establish a court of equity in Upper Canada. 7 This is possible, but the young province had more pressing problems and, as later became apparent, there were a number of obstacles to the introduction of equity. The first serious proposal for the establishment of such a court was made in 1801 by Henry Allcock, then a judge of the Court of King's Bench in Upper Canada. He was strongly supported by the Lieutenant-Governor, Peter Hunter. Allcock's plan was based on Blackstone's theory of royal prerogative which held that the Crown alone "has the right of erecting courts of judicature." Therefore, when the Great Seal of the province was delivered to the Lieutenant-Governor, he became Keeper of the Great Seal for the Province and, under the Statute of 1562, 9 had all the powers of the Chancellor. Under the statute no legislation would then be required to create a court of Chancery and the Lieutenant-Governor was free to establish himself as the dispenser of equity in the province. It was on this assumption that Courts of Chancery, presided over by the Governor, had been established in Nova Scotia,' 0 Quebec" and many of the American states. In Upper Canada, however, Lieutenant-Governor Hunter 12 was a soldier by profession and, as such, unqualified to dispense equity. 41792, Upper Canada 32 Geo. 3, c. 1, s. 3 [hereinafter U.C.]. 51794, U.C. 34 Geo. 3, c. 2. 6 Riddell, "William Osgoode, First Chief Justice, Upper Canada," Upper Cana- dian Sketches: Incidents in the Early Times of The Province (Toronto: Carswell, 1922) at 111. 7Riddell, The Bar and the Courts of the Province of Upper Canada or Ontario (Toronto: Macmillan, 1928) at 161. 8 Blackstone, Commentaries on the Laws of England Vol. I (Oxford: Clarendon Press, 1770) at 257. 9 1562, 4 Eliz. 1, c. 18. 11 Townshend, HistoricalAccount of the Courts of Judicaturein Nova Scotia and the History of the Court of Chancery in Nova Scotia (Toronto: Carswell, 1900). " Riddell, The First Court of Chancery in Canada (1922), 2 Bos. U.L. Rev. 231, cont'd (1923), 3 Bos. U.L. Rev. 1. 12 Supranote 6, at 149. 19831 Court of Chancery Allcock proposed, therefore, that a court of Chancery be established with Hunter as Chancellor and a Master of the Rolls to act on his behalf. The British Government would not approve the project, ostensibly because the Lieutenant-Governor already had the power to dispense equity and to request assistance if necessary. In reality, Britain's principal objection appears to have been the cost of paying another judge. 13 Accordingly, Allcock modified his plan to allow fees to be collected from users of the court. Hunter would still be Chancellor, but Allcock would do the work and receive his remuneration from the fees. 14 The British approved the scheme but before it could be im- plemented, Hunter died and Allcock became Chief Justice of Lower Canada. With its two architects gone, the proposal was forgotten. In 1806, Mr. Justice Thorpe, another judge of the court of King's Bench in Upper Canada, advocated the establishment of a court of Chancery largely because he wished to head it. In fact, he generously wrote to his friend, Ed- ward Cooke, 'sto say "there is such a strong necessity for its establishment that I will undertake it for the sake of public justice, without fee, or reward." 16 It cannot be said whether this offer would have been accepted, for Thorpe became embroiled in politics and was removed from office. Interest in the project was not revived until the 1820s when the British authorities expressed concern over the absence of equity in Upper Canada. As early as 1806, the Standing Counsel for War and the Colonies, W. Harrison, had written to the Under-Secretary, Sir George Shee: It seems extraordinary that a court was not established at the time of the introduc- tion of the English laws. The separation of our jurisdiction into legal and equitable makes such a court a most essential part of our establishment and many cases of hardship and instances of failure of justice must occur until it is established. 17 In 1827, John Walpole Willis was sent from England on the understand- ing that he would be appointed to a court of Chancery, should one be established. By then, however, the English law officers were less certain that the Crown could create a court without legislative sanction. Consequently, Britain recommended that the Legislative Assembly of Upper Canada be asked to create a court of Chancery. '8 This change in policy introduced new impediments to the establishment of a court of equity. Chancery was distrusted by the people of Upper Canada, for its costs and delays were legendary. Furthermore, many members of the Legislature were hostile towards the legal profession in general. The Assembly briefly considered the matter before determining that it was too busy to pro- vide that "mature consideration which is due to so important a subject in its complicated details."' 19 Riddell says that "it is practically certain that the Legislature could not have been induced to pass any Bill to erect such a court." 20 13Id.
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