Ontario Court of Appeal Revisits Specific Performance

38 Howard Park Ave | Oulahen Team Realty Inc.

Lucas and Howard Park

The Ontario Court of Appeal looks like it is re-opening the aspect of uniqueness and providing a little more flexibility for Buyers in its 2021 decision in Lucas v. 1858793 Ontario Inc.

The Buyers placed a deposit on a condominium apartment in downtown Toronto. Prices increased substantially and for a variety of reasons the Builder refused to close.

The Court determined that the condominium apartment was not really unique in any way physically, but nevertheless upheld a decision to award specific performance because overall that would yield a better and more fair result for the Buyers.

In the legal proceedings, the deposit was already tied up, so, the Buyers really weren’t free to purchase something else, and prices had escalated rather substantially.

The Buyers did say that if they acquired the unit, they would simply sell it. The Court however determined that had the deal closed as scheduled, they would have occupied the unit, and concluded further that that was the relevant date.

Uniqueness is just one part of the decision. The Court stated the:

 “more fundamental question is whether the plaintiffs (buyers) have shown that the land rather than its monetary equivalent better serves justice between the parties.”

The Court of Appeal points out that even though some condominium units may indeed be unique, but regardless of that, if specific performance represents a more just result, then, it should be awarded.

Brian Madigan LL.B., Broker


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