Equitable Remedies - General

Question 1

Do we start with equity or damages first?

Answer 1

Damages. Equity will be used as a remedy if damages are deemed insufficient.

Question 2

S. 44 of the Law & Equity Act?

Answer 2

• S. 44 LEA – if there is a conflict between common law/equity, equity prevails.

Question 3

Compared to common law damages, equitable remedies are:

Answer 3

• Specific: (as opposed to general) always around individual, unique circumstances of a situation.
• Discretionary: cannot be claimed as of right (like you can with CL) and people’s moral/character can be considered when applying court’s discretion. It’s ultimately up to the discretion of the court, must weigh the interests of the plaintiff and defendant and his/her burden and in the efficacy and efficiency of their own processes. Want to avoid multiplicity of proceedings.
• Invasive: actually requires the defendant to do something (requires their cooperation) in response to a court order. i.e. with property damage, there might be an order to pay money under common law, where as with an equitable remedies the defendant may actually have to go out and physically repair the damaged property. Based on the this, the courts are careful about infringing on individual liberty/autonomy. Equity requires compliance from infringing individual, therefore is saved for exceptional situations. If no compliance, they are jailed.