Professor Berryman will deliver a seminar at the Faculty of Law on the topic: "Stories of Evolution in Specific Performance: A Canadian Tale"
The seminar will take place on from 12PM - 1PM, 16th August 2012.
In 1996, the late Justice Sopinka, of the Supreme Court of Canada, made the following obiter dicta comments on the relationship between specific performance and the sale of real estate.
While at one time the common law regarded every piece of real estate to be unique, with the progress of modern real estate development this is no longer the case. Residential, business and industrial properties are all mass produced much in the same way as other consumer products. If a deal falls through for one property, another is frequently, though not always, readily available. It is no longer appropriate, therefore, to maintain a distinction in the approach to specific performance as between realty and personalty. It cannot be assumed that damages for breach of contract for the purchase and sale of real estate will be an inadequate remedy in all cases. Courts have tended, however, to simply treat all real estate as being unique and to decree specific performance unless there was some other reason for refusing equitable relief... Specific performance should, therefore, not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available.
Clearly, this passage from Semelhago v. Paramadevan was going to have an impact on the practice of real estate litigation in Canada. And, in fact, it has led to an evidential requirement placed upon plaintiffs to provide evidence of uniqueness. But has it changed the substantive outcome of those decisions? Sharpe writes that; “There has not, however, been a dramatic change in practical results, particularly with respect to residential property.” I agree with Sharpe’s assessment that the substantive changes do not appear to have been ‘dramatic’, but they are noticeable, particularly for property developers and investors. In the first part of this note, I describe some of the changes that Sopinka J.’s comment has brought to Canadian law. In the second part I offer some observations on the role of the relationship of specific performance as a contractual remedy in real estate transactions.
Jeff Berryman is a Professor of Law at the Faculty of Law, University of Windsor, Canada, where he has been for the past 30 years. In addition, he holds a part-time appointment as Professor of Law, Faculty of Law, University of Auckland, N.Z. A specialist in remedies, he also teaches contract law and restitution. He is the author of “The Law of Equitable Remedies” (Irwin Publishing – Essentials of Canadian Law series) and is the co-ordinating editor and contributing author of Berryman et al, “Remedies: Cases and Materials” now in its 6th ed., published by Emond Montgomery. His published articles have appeared in journals in Canada, Australia, New Zealand, The United States, and England. He has advised the New Zealand Ministry of Justice, Ontario Law Reform Commission, and the Federal Court of Canada. He is a member of the Law Society of Upper Canada and a barrister and solicitor of the High Court of New Zealand.
Authorised by the Dean, Faculty of Law
18 July, 2012