Date: Thu, 17 Jul 2003 11:00:20 -0400

From: Jason Neyers

Subject: Formal Equality: A Clarification

I post this on behalf of Jennifer Bankier:

I would have said that the current trend in Canada (at a minimum) is contrary to the position Jason defines as formal equality below.

It has been held that Charter principles should influence the development of the common law, even if the Charter itself does not apply directly to private parties. In Charter application, the Supreme Court of Canada has called for *substantive* equality, not formal equality.

Moreover, there are private law contexts where, quite apart from the Charter, Canadian courts have shown growing awareness that substantive inequalities between the parties are relevant to outcomes.

Two obvious ones are unconscionability doctrine (going back a long way now) in contract law, and the Supreme Court's abuse of power doctrine for invalidating consent as defined in Norberg v. Weinrib in torts.

Moreover, the whole of the law of fiduciary duties is based on an awareness of inequality of power between fiduciaries and beneficiaries.

It is doubtful, therefore, that there is a *universal* rule in private law favouring formal equality, although there may be *particular* contexts in which such a rule exists.

Moreover, I would be skeptical of the continuing validity of *older* cases, as opposed to *modern* ones articulating such a rule.

Jennifer Bankier

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