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Substance over form analysis: Our justice system’s universal tool | William Poulos

Thursday, August 12, 2021 @ 10:30 AM | By William Poulos


William Poulos %>
William Poulos
The substance over form analysis has been in our justice system for a long time helping to achieve justice in many areas of law, while respecting administrative and judicial resources. To the extent it helps with the latter, it also serves access to justice concerns. It forces lawyers and judges to concentrate on what is important on the road to justice and not on matters such as issues, witnesses, cases, documents, arguments that in the end really do not matter.

It forces lawyers and judges to stand back and look at the legal forest before him or her and follow the path that really matters to achieve the ends of justice. It forces them to ask, What are the key issues in this trial, this appeal, and what are the key documents to refer to and arguments?

The substance over form analysis must be serving justice well as it has been employed in many areas, whether it be case analysis or in statutory interpretation. It has found favour in labour matters, interpreting statutes such as the Securities Act and the Residential Tenancies Act. Courts of equity have looked to substance over form to avoid paths to injustice. In assessing jury instructions, the question is not whether the trial judge uttered specific words or a formula but whether the charge as a whole, in the context of the case, served its purpose by delivering the necessary message. Substance over form.

In criminal law, a fair criminal justice system prioritizes substance over form. Courts have applied the substance over form analysis, for example, when considering whether there is a breach of s.10(a) of the Charter. Our courts have not been hesitant to apply the substance over form analysis in finding that a case in essence is tax evasion although not prosecuted as such but rather prosecuted for fraud over the basis of the fraud being evasion of taxes. To get to the substance we have to go to the roots.

Trust law does not escape the substance over form analysis. Our courts have held there is no magic in the word “trust,” and intention is a matter of substance over form.

These are just a few examples of the wide use of the substance over form analysis and, no doubt, readers will think of more in their areas of practice where this analysis has been applied. It is not easy getting to the substance of the matter. It may take hours of poring over facts and law, hours of reflection, basically hours of the hard work.

The substance over form analysis has served our justice system well in many areas of law and will continue to do so. In this writer’s view it is a helpful universal analysis for preparing any case. Before we go to a discovery, mediation, motion, trial or appeal, we should always ask ourselves, What is this case really about? What do I wish to emphasize to make my points clear and focused? Access to justice and justice demand nothing less.

William Poulos has practised civil litigation for over 30 years and is a sole practitioner in Kingston, Ont.

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