The Doctrine of Public Policy in Canadian Contract Law

8 / Annual Review of Civil Litigation
However, despite the fact that the nineteenth century began to witness the
emasculation and dissection of public policy into various "heads" and "categories,"
its vigour was affirmed by the House of Lords in the watershed decision
of Egerton v. Earl of Brownlow.4° There, the majority of the Law Lords declined
to follow the view expressed by 9 of 11 lower judges {who were specially
summoned by the House to provide their opinions in this respect) that a condition
in a will which made the receipt of a large estate conditional upon the
recipient's ability to obtain an aristocratic title was not contrary to public policy.
Parke B., one of the lower judges, drafted a powerful judgment in which he
stated that:
[1]r is the province of the statesman, and not the lawyer, to discuss, and of the
Legislature to determine, what is best for the public good, and to provide for it
by proper enactments. It is the province of the judge to expound the law only; the
written from the statutes: the unwritten or common law from the decisions of our
predecessors and of our existing Courts, from text writers of acknowledged
authority, and upon the principles to be clearly deduced from them by sound
reason and just inference; not to speculate upon what is the best, in his opinion,
for the advantage of the community. Some of these decisions may have no doubt
been founded upon the prevailing and just opinions of the public good; for
instance, the illegality of covenants in restraint of marriage or trade. They have
become a part of the recognised law, and we are therefore bound by them, but we
are not thereby authorised to establish as law everything which we may think for
the public good, and prohibit everything which we think otherwise.4' [emphasis
added]
Nevertheless, in accepting the dissenting view, the House sided with Lord
Pollock, C.B., who held the following:
bit may be that judges are no better able to discern what is for the public good
than other experienced and enlightened members of the community; but that is
no reason for their refusing to entertain the question, and declining to decide
upon it.42 [emphasis added]
Lord Truro, who authored the leading judgment in the House, was of the opinion
that public policy served a vital judicial role. He framed his reasons this way:
[i]t has been said that this rule is too uncertain and vague to be capable of practical
application by judges, on account of the various opinions which may be entertained
on the subject of public policy. But I think the remark has no just foundation.
There is no uncertainty in the rule that the law will not uphold dispositions of
property and contracts which have a tendency prejudicial to the public good.
40 (1853) 4 H.L.C. I [Egerton].
41 Ibid. at 123.
42 Ibid. at 151.