Kindness and Mercy

A very recent example of a court both showing mercy and exercising the power it had with respect to a mortgagor’s equity of redemption with kindness is Winters v. Hunking, 2017 ONCA 909. A mortgagor, a man of limited abilities, and described by Blair J.A. as a man who “did everything wrong”, mortgaged his farm to the plaintiffs. In foreclosure proceedings, the Court of Appeal allowed him to keep the large difference between the amount needed to discharge his debts and the price that could be obtained for the land. The reasons for judgment and the decision are characterized by kindness and demonstrate the power of equity to allow the court to do what manifestly had to be done.


  1. Agree with all that you say. It is also a model of good, economical, clear judicial writing.

    Paragraphs 2 through 9 beautifully illustrate the importance of “framing” the facts, for there often is more than one way to look at a story. It is a useful reminder of the importance of our role as advocates, to paint the picture which illustrates the path to a favourable result for our clients, wherever possible.

  2. A judicial decision for the holidays…thank you for bringing this one to our attention.

  3. Brian – My view, on the assumption that all of the relevant facts are set out in the CA reasons, is that while there was, as Angela Swan explains, more than one legally correct answer, there was only one morally (i.e., just) answer. It’s the difference between what we are are allowed to do (legally) and what we ought to do. The latter is always as wide as the former. It’s unfortunate that the underlying reasons aren’t reported on CanLII.



  4. David:


    My point was from a slightly different viewpoint, perhaps because I have used the Remedies course I teach to try to grow a new generation of advocates, and this case was a superb example of how taking the facts and presenting them in the proper way to lead the decision maker to the just result is what superior advocacy is all about.

    I justify it in the course as an illustration of the role of equity in discretionary decision making.

  5. Brian,

    I spotted that. It’s my suspicion that rhetoric succeeded at first instance; or, to put it more bluntly Hunking’s lawyer was outlawyered. The niggle about that suspicion, though, is the motion judge. My recollection of him is that he almost always saw through hollow rhetoric. If you find a link to the first instance reasons, let me know, please.

    BTW, my blog is active again, for a time, if only because the factual causation decisions are becoming odder than ever. (I’m being polite, here.)

    Best regards,


  6. Tough cases make bad law.

  7. “Tough cases make bad law” is another of the hoary statements about law that make no sense.

    Common law systems have two sources of law: statute and judicial decision.

    If the problem is the statute, the cause isn’t the tough case. It’s the stupidity of the legislators who enacted a bad law.

    If the problem is a judicial decision, and it’s “bad”, whatever bad means, then

    (a) if it’s legally wrong, meaning contrary to other law that required a different decision,, it’ll be overruled.

    (b) If it’s bad because the result is consistent with existing law, then the law was already bad. So that case didn’t make bad law. You’d have to go back to the case that established the law that you now say is bad because it dictated the bad result. The result then might not have been bad at all but circumstances have changed since.

    If the change in circumstances is that significant, Canadian common law allows the courts to disstinguish (not follow) the prior decision.

    For what it’s worth,