The Doctrine of Public Policy in Canadian Contract Law

6 / Annual Review of Civil Litigation
even taken the veil of anonymity."27 It is therefore necessary for the purposes
of this paper to adopt a distinction formulated by Winfield between:
. .the unconscious or half-conscious use of it which probably pervaded the whole
legal system when law had to be made in some way or other, and. . . the conscious
application of public policy to the solution of legal problems, whether it bore the
name by which it is now known or was partly concealed under some other
designation.28
The first species of public policy has been identified with equity, the
natural law, the law of reason, and ultimately the divine law. It is referred to by
early legal commentators with wonder, as an animistic spirit dwelling deep
within our jurisprudence that is "written in the heart of every man and tells him
what to do and what to avoid."29 Ultimately, it was in the gradual rationalization
of this supra-human tendency against which "[n]either statute nor custom can
prevairm that the modern idea of public policy was first developed and readied
for conscious application.
In its origins, this second manifestation of public policy was still a highly
intuitive concept, distinguishable only from natural law via the secular nature
of its authority. Both Knight and Winfield find its earliest expression in highly
general dictums by Littleton and Coke that the law will not permit that which
is "inconvenient" to the public good to triumph for the sake of the private
good.3' At this nascent phase:
[t]he doctrine, concealed under widest generalization, operates, in fact, because
of some gap in [the] law, though only where the dominant consideration is the
good of the community — the supreme law — with, it may be, some special
consideration for the rights or interests of individuals other than those immediately
concerned in the matter the subject of suit.-42
Yet although "[t]he present law is the result of a development that stretches
back to at least Elizabethan times. . . its foundations were not effectively laid
27 Winfield, supra note 1, at 76.
28 Ibid. at 77. This distinction is occasionally recognized in the case law: see, e.g., Fender
v. Mildmay (1937), [1938] A.C. 1 (H.L.) at 38.
29 Winfield, supra note I at 78, writing in reference to "the dawn of our law" and St.
Germain, Doctor and Student (1523) bk. I, cc. II.
30 Ibid. at 78.
31 Knight, supra note 2 at 207-8; Winfield, supra note 1, at 80-83. Both authors refer to
Coke's maxim "nihil quad inconveniens est licituin" in Co. Litt. at s. 138, which Winfield,
at 82, states "was perhaps rightly taken by later authorities to lay down the doctrine of
public policy, or at least to contain the seeds of formal ideas about it." This maxim has
been translated as "tilt is better saith the law to suffer a mischief that is peculiar to one
than an inconvenience that may prejudice many": Deckert v. Prudential Insurance Co.,
[1943] O.R. 448, [1943] O.J. No. 467 (C.A.) at para. 31.
32 Knight, supra note 2 at 208.