- [1996] 2 SCR 415 (Supreme Court of Canada (SCC)).
- Adderley v Dixon (1824) 1 Sim & St 607, 57 ER 239; HG Beale (ed), Chitty on Contracts (30th edn, Sweet& Maxwell 2008) [27–007].
- 11 Suntract Holdings Ltd v Chassis Service & Hydraulics Ltd (1998), 36 OR (3d) 328 (Ontario Superior Court of Justice (ONSC)) [39]; John E. Dodge Holdings Ltd v 805062 Ontario Ltd (2002), 56 OR (3d) 341 (ONSC) [55]; Trinden Enterprises Ltd v Ramsay, 2009 BCCA 125 (British Columbia Court of Appeal) [15]. For recent overviews of Canadian jurisprudence in this area, see Paul M Perell, ‘Common Law Damages, Specifc Performance and Equitable Compensation in an Abortive Contract for the Sale of Land: A Synopsis' (2010–11) 37 The Advocates' Quarterly 408; Candace Wells, ‘The Limited Availability of Specific Performance of Agreements for the Sale of Land since Semelhago v. Paramadevan’ (2011–12) 39 The Advocates' Quarterly 171.
- Semelhago (n 1) [12]–[13]; Shapiro v 1086891 Ontario Inc, [2006] OJ No 302 (ONSC) [135]; Trinden (n 3); 2068895 Ontario Inc v Snyder, 2011 ONSC 404 [11]; Southcott Estates Inc v Toronto Catholic District School Board 2012 SCC 51 [37]–[41].
- Indeed, land sales arguably represent a larger and more economically significant body of contracts than sales of unique goods. In spite of this, the rule deeming land to be unique has traditionally been viewed as an exception to the uniqueness principle that governs the sale of goods.
- Fu Hao Construction Ltd v Landco Albany Ltd [2005] 1 NZLR 535 [43]–[44] (New Zealand Court of Appeal); EC Investment Holding Pte Ltd v Ridout Residence Pte Ltd [2011] 2 SLR 232 (High Court of Singapore), affd [2011] SGCA 50 (Singapore Court of Appeal); GE Dal Pont & DRC Chambers, Equity and Trusts in Australia and New Zealand (3rd edn, Thomson Reuters 2004) 871–72; Stephen Mills, ‘Specific Performance: Sale of Land’ (2006) New Zealand Law Journal 196, 200. Fu Hao introduced a distinction in New Zealand between land purchased for commercial purposes and landpurchased for private purposes. Specific performance would apparently only be available in the latter type of cases. In EC Investments, the trial judge found that Singapore should move towards a more restrictive approach to Specific performance in contracts for the sale of land, and only grant it where damages would be demonstrably inadequate. The Court of Appeal decided the case on other grounds.
- See, for example, Garland v Consumers' Gas Co, 2004 SCC 25 (Supreme Court of Canada), where civilian general principles of unjust enrichment were set out in an attempt to rationalise the categories-based approach of existing common law unjust enrichment jurisprudence.
- Civil Code of Québec, SQ 1991, c 64, art 1712; Pierre-Gabriel Jobin, La Vente (3rd edn, éditions Yvon Blais 2007) 58–59.
- Specific performance is the default contractual remedy in the civil law. In the United States there is still an absolute presumption of uniqueness for land. See The American Law Institute, Restatement of the Law Second, Contracts (American Law Institute Publishers 1981) 776; Joseph M Perillo, Calamari and Perillo on Contracts (6th edn, Thomson Reuters 2009) 553–54.
- See, for example, Mills (n 6); Jeff Berryman, ‘Recent Developments in the Law of Equitable Remedies: What Canada Can Do for You’ (2002) 33 Victoria University of Wellington Law Review 51.
- Chitty on Contracts (n 2) [27–007]. See also Adderley (n 2).
- Chitty on Contracts (n 2) [27–007].
- Wroth v Tyler [1974] 1 Ch 30, 57; Johnson v Agnew [1980] 1 AC 367, 401 (House of Lords (HL)).
- Semelhago (n 1) [22].
- Konjevic v Horvat Properties Ltd (1998), 40 OR (3d) 633, [11] (Ontario Court of Appeal (OCA)); Ali v 656527 BC Ltd, 2004 BCCA 350 [23]; 1244034 Alberta Ltd v Walton International Group Inc (2007) 422 AR 189 (Court of Appeal of Alberta (CAA)) [2]–[4]; Raymond v Anderson, 2011 SKCA 58 (Court of Appeal for Saskatchewan (CAS)) [15]; Perell (n 3) 417–18; Wells (n 3) 176.
- Suntract (n 3) [42]–[44]; John E. Dodge Holdings (n 3) [55]; Trinden (n 3) [15]; Wells (n 3) 178; Zhang v Soong, 2012 BCSC 758 (British Columbia Supreme Court) [107].
- Raymond (n 15) [17]; 1534818 Alberta Ltd v Tissot Management Ltd, 2011 ABQB 75 (Court of Queen's Bench of Alberta) [95]; McDonald v McDonald, 2011 MBQB 241 (Court of Queen's Bench of Manitoba) [70]–[73]; Berryman (n 10) 81.
- Perell (n 3) 417. See also Walker v Blades, 2006 BCSC 733 [114] (BCSC), revd on other grounds (2007) 70 BCLR (4th) 226 (British Columbia Court of Appeal); Canamed (Stamford) Ltd v Masterwood Doors Ltd, [2006] OJ No 802 (ONSC) [110]–[113].
- Wells (n 3) 179, citing Angela Swan, Canadian Contract Law (2nd edn, LexisNexis 2009) [6.312].
- Tropiano v Stonevalley Estates Inc (1997) 36 OR (3d) 92 (Ontario Court of Justice (General Division));
- John E. Dodge Holdings (n 3); Canamed (n 18); Cross Creek Timber Traders v St John Terminals, 2002 NBQB 79 (Court of Queen's Bench of New Brunswick); Ali (n 15); Sihota v Soo, 2010 BCSC 886; Raymond (n 15); McDonald (n 17).
- See, for example, Semelhago (n 1) [20]; Konjevic (n 15); Trinden Enterprises v Ramsay, 2004 BCSC 226; Shapiro (n 4); Li v Au, 2006 BCSC 671; 1244034 Alberta Ltd (n 15); Serebrennikov v Sawyer's Landing Investments 1 Ltd, 2010 BCSC 1276; 2068895 Ontario Inc (n 4); Southcott Estates (n 4) [40]–[41].
- Perell (n 3) 418; Wells (n 3) 180.
- Semelhago (n 1) [12]–[13]. This position was recently reaffirmed by the Supreme Court of Canada in
- Southcott Estates (n 4) [37]–[41].
- Asamera Oil Corp Ltd v Sea Oil & General Corp, [1979] 1 SCR 633, 668 (SCC).
- See, for example, Shapiro (n 4) [135]; Trinden (n 3); 2068895 Ontario Inc (n 4) [11].
- This problem is pointed out by McLachlin CJ in her dissenting opinion in Southcott Estates (n 4) [94].
- Orlando Da Silva, ‘The Supreme Court of Canada's Lost Opportunity: Semelhago v Paramadevan’ (1998) 23 Queen's Law Journal 475, 507; Wells (n 3) 196.
- Especially Domowicz v Orsa Investments Ltd (1993), 15 OR (3d) 661 (Ontario Court of Justice (General Division)). See also Heron Bay Investments Ltd v Peel-Elder Developments Ltd, [1976] OJ No 1403 (Ontario High Court of Justice); Chaulk v Fairview Construction Ltd (1977), 14 Nfd & PEIR 13 (Newfoundland Court of Appeal).
- Domowicz (n 28) 683.
- Anthony Kronman, ‘Specific Performance’ (1977–78) 45 University of Chicago Law Review 351.
- Kronman (n 30) 365.
- Kronman (n 30) 368.
- Alan Schwartz, ‘The Case for Specific Performance’ (1979–80) 89 Yale Law Journal 271, 280–84.
- Thomas S Ulen, ‘The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies' (1984–85) 83 Michigan Law Review 341, 375–76.
- John E Dodge Holdings (n 3).
- Schwartz (n 33); Ulen (n 34).
- Ulen (n 34).
- In Canada this would be done by registering a certifcate of pending litigation or caveat on the vendor's title. See 1244034 Alberta Ltd (n 15).
- Alberta Law Reform Institute, Contracts for the Sale and Purchase of Land: Purchasers' Remedies (Final Report No 97, 2009).
- Alberta Law Reform Institute (n 39) 17.
- Alberta Law Reform Institute (n 39) 18.
- Chitty on Contracts (n 2) [27–082].
- It is also worth noting that the ALRI's arguments are applicable to contracts generally, not just to contracts for the sale of land, such that if they are correct, the analysis would tend to suggest that Specific performance should be the default remedy in all contracts, as in the civil law.
- Kronman (n 30) is cited in Domowicz (n 28) 682.
- Ernest Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 349, 349.
- Louis Kaplows, ‘Rules versus Standards: An Economic Analysis’ (1992) 42 Duke Law Journal 557, 559; HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 124–26.
- Kaplow (n 46) 562.
- Kaplow (n 46) 586.
- Kaplow (n 46) 577.
- Greater compliance due to more widespread legal advice under rules, however, is probably not a relevant factor here, since contracts for the sale of land tend to be of such a high monetary value that it would be rare that legal advice would not be sought.
- Semelhago (n 1) [12]–[13], [22]; Shapiro (n 4) [135]; Trinden (n 3); 2068895 Ontario Inc (n 4) [11].
- Wells (n 3) 179.
- As suggested in Donald Clark, ‘Will That Be Performance… Or Cash?: Semelhago v. Paramedevan and the Notion of Equivalence’ (1999) 37 Alberta Law Review 589, 593. Something like this approach was adopted in a decision of the New Zealand Court of Appeal: Fu Hao (n 6) [43]. In that case, a distinction was made between ‘commercial’ interests and ‘private or sentimental’ interests in determining whether Specific performance should be granted.
- Chitty on Contracts (n 2) [26–006].
- John E Dodge Holdings (n 3).
- John E Dodge Holdings (n 3); Fossum v Visual Developments Ltd, [1997] AJ No 1255 (Alberta Court of Queen's Bench); Suntract (n 3); Canamed (n 18); Cross Creek Timber (n 20); Perell (n 3) 419.
- Domowicz (n 28).
- Domowicz (n 28) 688.
- Other arguments may be posited to explain why Specific performance should be the default remedy for land sales. First, with land sales, as opposed to other types of contract, the court is in a position to implement the order directly, by effecting a title change. There are thus few supervision problems that arise from the remedy. Second, performance of a land transfer is unlikely to be unduly oppressive to the promisor, unlike, for example, obligations to perform a service. While these arguments do tend to show that specific performance in contracts for the sale of land is less disruptive than specific performance in other contracts, they do not address one of the key problems with specific performance that has been identified in this paper—that it results in a tying up of the land during the period leading up to litigation. The costliness and potential unfairness of this situation in certain cases, in my view, is enough to outweigh the benefits of the land rule, regardless of how simple and nonoppressive land-sale specific performance orders are in their enforcement.
- Semelhago (n 1) [18]–[22].
Oxford University Commonwealth Law Journal
Volume 12, 2012 - Issue 2