Court of Appeal Summarizes Specific Performance Law

Dhatt v. Beer, 2021 ONCA 137

The Beers decided to appeal. They were unsuccessful and a further $15,000 in costs was awarded against them.

The Ontario Court of Appeal stated:

In respect to specific performance,

To describe the remedy of specific performance as an “extraordinary remedy” is a misdescription. In determining whether to grant specific performance, the fundamental question is whether the plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties

And further,

Whether specific performance is to be awarded or not is therefore a question that is rooted firmly in the facts of an individual case … In determining whether a plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties, courts typically examine and weigh together three factors:

  • the nature of the property involved;
  • the related question of the inadequacy of damages as a remedy; and
  • the behaviour of the parties, having regard to the equitable nature of the remedy …

Whether a property is unique, either by virtue of its nature or the features of the contract for its purchase and sale, operates as only one of several factors a court must consider when determining entitlement to specific performance.

The Court also concluded:

“[43]      The trial judge identified and applied the governing principles. Her conclusion, at paras. 39 and 40, that the Dhatts had demonstrated that

the property possessed unique qualities was fully supported by the evidence.

As was her finding that damages would not be an adequate remedy in the circumstances given the evidence that the Beers lacked sufficient funds to pay a damages award.

[44]      Accordingly, I see no basis to interfere with the trial judge’s grant of specific performance.”

COMMENT

The Sellers in this case wasted a lot of Court time. They always asked for an adjournment at every instance and even faked a substantial medical emergency in the course of trial requiring immediate hospitalization.

Mrs. Beer simply had Seller’s remorse. In 2016, the real estate market had gone up substantially from the sale in January to the closing in May. She thought that they should get more money for the house.

The Court decided that a “deal’s a deal”, and eventually when it became evident that the Sellers had “no money” to satisfy any Judgment, they moved over to the equitable remedy of “specific performance”. That would work and meet the requirements of “justice” in this case.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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