UWindsor Law professor updates Law of Equitable Remedies amid increasing interest in the area

This article was produced in partnership with the University of Windsor.

A decade after its second edition, significant developments warranted a thorough revisiting of the Law of Equitable Remedies.

“The essential features were to bring the book up to date, but also to expand its function to make it more relevant for practitioners and judges as well as students,” says Jeffrey Berryman, author of the text and professor at the University of Windsor Faculty of Law. “It has been picked up and cited in a number of cases — there was clearly a demand that way.”

As with past editions, Berryman’s aim is to provide an accessible book on the law of equitable remedies that is a single source of pertinent law. From landmark Supreme Court of Canada rulings to adapting to a changing societal landscape, the text covers much change in the space including thorough case notes and enhanced footnotes. A professor in equitable remedies for more than three decades, it’s an exciting time, Berryman notes, adding he’s seen a spike of interest from his students as well. Due to recent developments, “there’s more interest in equitable remedies today — they’ve become much more important.”

An increasingly digital space

Since the second edition, digital media, particular social media, has expanded exponentially and challenges the law in a variety of ways. Berryman notes there’s a changing nature, particularly in interlocutory injunctions and concerns about privacy and digital media. Those concerns require an injunction to get the material taken down or stop it from being published, but that then confronts the issues of freedom of expression or freedom of the press and also the notion of the open court principle.

In the text’s preface, Berryman gives an example of the difference between someone being irritated at someone shouting at them over the fence in the past, versus finding one’s name across social media today.

“Once something is published, you’ve lost privacy and the only way to stop something from being published is to get an injunction — they’ve become much more important,” Berryman says, noting he expanded significant parts of the book to deal with whether interlocutory injunctions should be made available in that space, and also touched on de-indexing orders which are part of digital media.

Rulings of significance

The SCC’s Google v. Equustek decision provides guidance on how an interlocutory injunction will be operationalized in a digitally interconnected world, and Berryman explains it and its implications in detail in the latest edition.

It’s also been over twenty-five years since the SCC decided Semelhago, a case that made a significant change in Canada’s law on specific performance. Berryman wrote a short section on its impact, especially relevant to the current economy given “the concept of inadequacy of damages has been influenced by the heightened property market across the country, although, now in a downturn, we may see more vendor applications for specific performance.” 

“That ruling basically said a plaintiff had to provide evidence of irreparable harm or of uniqueness before getting a specific performance decree for sale of land contracts where in the past that had been a presumption,” Berryman says. “It was time to review how significant that change has been.”

There was also the Supreme Court’s 2021 decision in Southwind v. Canada, which provided guidance on how the assessment of equitable compensations differs from common law damages with respect to causation, remoteness, and foreseeability in the context of Canada’s historic breaches of fiduciary obligations to Indigenous peoples. This was another big development in the Canadian landscape that Berryman confronted in the new edition of his text.

Based on a fiducial obligation, breaches of them give rise to equitable remedies of equitable compensation and the latter “takes on a particular character in Canada because it has been heavily influenced by cases that contend with Indigenous Peoples and violation of the fiduciary duty owed by the Crown,” Berryman says.

 “Students are very interested in those claims now that they are much more prevalent, and they find utility in the course in that area as well,” he notes.

A long tradition in the space

Teaching in the remedies area for over 35 years, Berryman initially sought to create a book that was modelled on an Australian text on the same subject. He also found inspiration from William Blackstone, who in the 19th century published a four-volume set of commentaries that synthesized the common law into an easily accessible form and influenced the development of the common law in Canada, the United States, and other British colonies at the time.

Crucially for Berryman, for the practicing lawyer it meant that “a largely case law precedent system could be carried with them in their day-to-day work without resorting to law reports or statutes,” and Law of Equitable Remedies draws inspiration from that idea.

“My primary research interest has always been in the area of remedies, more particularly equitable remedies,” Berryman says, adding he’s also been involved with the only commercially published Remedies Cases and Materials case book since it started in 1984.

“I have a long tradition in the space.”