Nunatsiaq Online
COMMENTARY: Around the Arctic July 12, 2017 - 1:09 pm

Legal Ease, July 12

Fairness

JAMES MORTON

Although it does not always succeed, a major goal of the justice system is to determine disputes between people fairly. 

That means that harsh and oppressive behaviour will not be rewarded by the court. Put otherwise, following the Golden Rule—treat others as you would like to be treated—is rewarded by the court.

I recently argued a wrongful dismissal case where an employee was fired. The employer was perfectly entitled to fire the employee but was required to pay some money to help tide the employee over until they found new work.

In this case, the employer would likely have been required to pay around four months salary. But the employer fired the employee paying nothing and claiming—wrongly—that the employee stole things from work.

Because of that harsh, oppressive and unfair behaviour, the employer had to pay a lot more money than would otherwise have been due.

All the employer had to do was politely explain they were letting the employee go and provide the employee with a relatively small amount of money. But that’s not what happened.

Bad behaviour was met with a judgment that the employer did not need to receive—if only the employer had been fair and reasonable.

Of course, actually implementing the idea of fairness is not easy in the real world. Different people see what is “fair” differently so it can be a struggle to do what is “right.”

But the court tries and one good example of that is seen in the concept of “estoppel.” That rather fancy word simply means that sometimes you cannot rely upon what would seem to be a legal right if to do so would be unfair.

The court has a power dating back more than a thousand years to do what is just or equitable even in the face of strict legal rights to the contrary.

That said, the court uses its “equitable jurisdiction” very carefully.  It’s not appropriate for the court to ignore strict legal rights unless there is good reason to do so—and that sometimes makes it very difficult to decide if the court will intervene or not!

An example may help to make things clear.

Let’s suppose you get a flier left at your door saying “I will clear your drive of snow and you will pay only $250 after the ice melts.”

You ignore the flier but someone starts clearing the snow from your drive. You know perfectly well the person clearing the drive thinks, for some reason, you agreed to pay $250 come the spring. But you do not tell them about the mistake and you take full advantage of the snow clearing.

While details may make a difference, a court would be very likely to say you cannot deny agreeing to have the snow cleared (you are “estopped” from denying the agreement) and that you owe $250.

If you know someone is doing something of value for you and accept that something and know full well that they think there is some deal, you will almost certainly be held to that deal.

It sounds complicated but you cannot take advantage of someone’s mistake—that would be unfair.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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