by L. G. William Chapman, B.A., LL.B.

Having practiced law in the Province of Ontario for thirty-eight years (all but two of which have been in Almonte), I am afforded by my antiquity the privilege to provide an abstract view of the subject. I would like to share with you what upon reflection I consider to be the principles of law, those over-riding and distilled theses from which our more particular laws derive. It is a thorny question because so much of our legal system is the synthesis of many resources, religion, colonial history (including the American revolutionary experience), case law and even less identifiable sources such as our sense of fair play, our openness to change and even our view of the differences (if any) between the sexes. These fundamental principles guide not only the judiciary but also the members of society in legal interaction.

The so-called natural laws or products of the collective conscience must be accepted as peculiar to our Province because it is a gross mistake to assume that such principles are the same for every community, though obviously the Canadian vernacular is similar as a whole, but most likely quite dissimilar to the African or Asian model for example. Indeed any comparative analysis, whether of law or religion, is guaranteed to illustrate differences which at times are so startling as to erode the very foundation upon which our own beliefs are purportedly based. The reason for this is that we suddenly come face to face with the realization that our laws are not, as much as we might have wished to think, a priori (independent of experience) or universal; rather they are a posteriori, products of our culture which is why our legal principles are of limited geographic application. Howsoever these principles arise, they nonetheless exist, and for our purposes they arise from what in this Province at least is called the “Common Law” (itself a healthy republican starting point, one of which no doubt the ancient Romans would have approved). Let me add that these principles should not be confused with the constitutional division of powers and what the Americans in particular are of fond of viewing as entrenched rights.

Proportionality

The burdens imposed on the individual must not exceed what is necessary to achieve their objective. This principle nicely covers for example things like taxation, a subject which is especially dear to our hearts at this time of year.

Legal Certainty

One must define the legal entity with whom or which one is dealing, whether a natural person (including a partnership or other commercial construct such as a joint venture) or a corporation. There are no other recognized legal entities. The practical upshot of this principle is that if you are dealing with a corporation your remedies for default may be limited to what is in the account of the corporation, not that that of its principals however well-heeled.

Equal Treatment or Non-discrimination

This speaks for itself. We have long surpassed the once revolutionary legislation of the Family Law Reform Act which adopted the then entirely new concept of “equalization of assets”. It is a hot topic these days, having particular application to school bullying, variations of the meaning of marriage and even grass-roots considerations of whether girls can play on boys’ hockey teams or physically disabled athletes can compete in the able-bodied Olympics.

You Cannot Do Indirectly What You Cannot Do Directly

This principle is one which trumps a lot of otherwise clever manipulations in law. The attempt to defeat restrictions on the severance of land by granting the buyer a lease rather than a deed would be an example.

You Cannot Give What You Do Not Have

This seemingly empty assertion (much like “a bachelor is an unmarried man”) does however convey more than a mere axiom or self-evident truth. Particularly in the context of contracts, this principle has especial application if one party promises something which for one reason or another is out of his control (for example, guaranteeing the consent of a lender or landlord who are not parties to the contract). This principle has achieved such universal recognition that it is captured in the legal maxim Nemo dat quod non habet.

The Law Does Not Concern Itself With Trivialities

This is another of those maxims which is as well captured in a Latin phrase “De minimis nor curat lex“. While it might be thought that the law concerns itself with hair-splitting only, this principle prevents the parties from being consumed by relatively unimportant matters, whether spelling mistakes, obvious errors of identification, etc. This however does not relieve parties from strict compliance with statutory formalities (for example that a Will must be in writing).

Fundamental Breach

If performance is utterly substandard, the injured party is relieved from his obligations.

Substantial Performance

This is the flip-side of Fundamental Breach in that it prevents the injured party from taking unfair advantage of another whose breach occurs after a large percentage of the agreement has been performed.

Doctrine of Laches

Where there is unnecessary delay in prosecution of one’s rights or obligations the Court may decline to entertain them.