Legal Fiction

A ruling on law based on hypothetical facts.

In Stoner v Skene (44 Ontario Law Reports, page 609, 1918), Justice Lennox used these words:

"A legal fiction ... is an assumption of a possible thing as a fact, which is not literally true, for the advancement of justice, and which the law will not allow to be disproved, as far as concerns the purpose for which the assumption is made.

"Legal fictions are always set up for the advancement of justice."

In a much more recent case, (Staufen v BC 2001 BCSC 779, published at canlii.org/en/bc/bcsc/doc/2001/2001bcsc779/2001bcsc779.html), Canadian justice Scarth added:

"(A) legal fiction is an assertion accepted as true (though probably fictitious) to achieve a useful purpose, especially in legal matters."

Justice Scarth reviews historical common law doctrine and goes on to suggest that legal fictions are of three varieties:

"... fictions used to increase the jurisdiction of Courts; fictions designed to avoid cumbersome and archaic forms of action; (and) fictions having a false assumption of fact in order to extend the remedy the Court could grant."

In Butterworths Concise Australian Legal Dictionary, editors Nygh and Butt (1998) use as an example the 1992 case Mabo v Queensland (107 ALR 1, published at austlii.edu.au/au/cases/cth/HCA/1992/23.html) interpreting the decision to state that:

"The European settlement in Australia in 1788 as (empty land) was a legal fiction as it suppressed the fact that the land was inhabited ... by the aboriginal peoples."