Specific Performance Granted, Seller Lacked Funds

The Ontario Court of Appeal considered a case where it was clear that the Seller lacked funds to appropriately compensate the Buyers. Consequently, Specific Performance was granted.

The Court in Dhatt v. Beer, 4 March 2021, quoted the previous decision in Lucas with approval:

“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:

  • (1) the nature of the property involved;
  • (ii) the related question of the inadequacy of damages as a remedy; and
  • (iii) 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….”

Brian Madigan LL.B., Broker


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