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Injunctions - Specific Performance (3). Rabinowitz v. 2528061 Ontario Inc.
In Rabinowitz v. 2528061 Ontario Inc. (Ont CA, 2026) the Ontario Court of Appeal partially dismissed an appeal, here brought against two dismissals of actions for specific performance in a failed commercial APS context.
Here the court considered the 'specific performance' issue:[6] The trial judge’s decision not to grant specific performance was open to her on the record and grounded firmly in the facts as she was entitled to find them. The granting of specific performance is an equitable, discretionary remedy based on the particular facts of the case: Matthew Brady Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858, 125 O.R. (3d) 121, at para. 32. The appellant does not challenge any of the trial judge’s findings of fact.
[7] In our view, the trial judge correctly applied the governing principles and determined that the appellant had failed to discharge his burden to demonstrate that either the commercial property, purchased as a potential investment opportunity, or the agreement of purchase and sale was subjectively or objectively unique.
[8] We see no error in the trial judge’s conclusions that: 1) the appellant had not demonstrated that damages would be inadequate; and 2) damages would in fact be an adequate remedy. Proving the inadequacy of damages, too, was the appellant’s burden: John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 2001 CanLII 28012 (ON SC), 56 O.R. (3d) 341, aff’d (2003) 2003 CanLII 52131 (ON CA), 63 O.R. (3d) 304 (C.A.), at para. 60; Pittman Brothers Production Ltd v. Evans, 2024 ABCA 185, 498 D.L.R. (4th) 107, at para. 16.
[9] We also agree with the trial judge’s determination that the fact that damages may be awarded against the respondent in another unrelated proceeding in relation to the same property does not render damages here inadequate or otherwise compel an order for specific performance.
[10] Absent an error, which we do not find here, the trial judge’s decision not to grant specific performance is entitled to deference: 9725440 Canada Inc. v. Vijayakumar, 2023 ONCA 466, 167 O.R. (3d) 734, at para. 31; Matthew Brady, at para. 32. . Gill v. Gill
In Gill v. Gill (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal, this from the dismissal of a claim seeking "the transfer of the property to the appellants in specific performance of the parties’ April 15, 2018 agreement that the trial judge declared was valid and enforceable".
Here the court considered the law of specific performance:[15] Specific performance of an agreement is an equitable remedy granted where damages cannot afford an adequate and just remedy in the circumstances: Matthew Brady Self Storage Corp. v. InStorage Limited Partnership, 2014 ONCA 858, 125 O.R. (3d) 121, at para. 29, leave to appeal refused, [2015] S.C.C.A. No. 50; Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 746, 438 D.L.R. (4th) 374, at para. 22, leave to appeal refused, [2019] S.C.C.A. No. 420. As the Supreme Court instructed in Semelhago v. Paramadevan, 1996 CanLII 209 (SCC), [1996] 2 S.C.R. 415, at para. 22, specific performance should not be ordered automatically as the default remedy for breach of a contract for the sale of lands, “absent evidence that the property is unique to the extent that its substitute would not be readily available” or absent “a fair, real and substantial justification” for the claim to specific performance.
[16] The overarching question is whether the land rather than its monetary equivalent better serves justice between the parties: Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, 25 R.P.R. (6th) 177, at paras. 69-71; Dhatt v. Beer, 2021 ONCA 137, 68 C.P.C. (8th) 128, at para. 42. The governing factors that typically inform the determination of that question include: the nature of the agreement and the property, the objective uniqueness of the agreement and the property, and their subjective uniqueness to the purchaser at the time of purchase; the adequacy of damages as a remedy; and the behaviour of the parties having regard to the equitable nature of the remedy: Matthew Brady, at para. 32; Lucas, at para. 71. This discretionary determination is a fact-specific inquiry that requires a consideration of all the particular circumstances and the equities of the case: Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 430 D.L.R. (4th) 296, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 55; Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2021 ONCA 201, 32 R.P.R. (6th) 1, at para. 288.
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[21] The objective and subjective uniqueness of the appellants’ established home is obvious. Few purchases are as important as the family home, especially one in which the purchasers have lived and which they have maintained and improved for several years: Maraschiello v. Shellrock Developments Ltd., 2013 ONCA 167, at paras. 14, 15; 0994660 B.C. Ltd. v. Vanier, 2023 BCCA 483, at paras. 22, 23, 37; Lalani v. Chow, 2011 BCCA 499, 345 D.L.R. (4th) 310, at para. 19; Ali v. 656527 B.C. Ltd., 2004 BCCA 350, 29 B.C.L.R. (4th) 206, at para. 29; Raymond v. Anderson, 2011 SKCA 58, 6 R.P.R. (5th) 58, at para. 18; Chan v. Tu, 2006 BCSC 934, 45 R.P.R. (4th) 65, at para. 23.
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Are the equities in favour of specific performance?
[24] As I noted in the beginning of this analysis, specific performance is a discretionary, equitable remedy. Accordingly, it is necessary to step back and consider whether it would be equitable in all the circumstances to enforce the agreement in issue. Typical factors encompassed in this consideration include: the behaviour of the parties; delay; prejudice; unconscionability; or unfairness. . Jones v. Quinn
In Jones v. Quinn (Ont CA, 2024) the Ontario Court of Appeal considers the law of specific performance:[83] The appellant characterizes the application judge’s order as impermissibly fashioning an agreement for the parties. But that is not how I read her order. I understand the order as requiring the specific performance of a contract arising out of the exercise of the option, which the parties freely entered into. The parties agreed to a contract to sell a property, via the execution of an option. The appellant breached, and the application judge ordered them to follow through with their commitment and complete the conveyance of the Property.
[84] I acknowledge that the application judge did not conduct a formal specific performance analysis in her reasons. However, I have no hesitation in concluding that specific performance was an available remedy in this case, given that the Property was of unique significance to Ms. Jones: see generally Erie Sand and Gravel Limited v. Tri-B Acres Inc, 2009 ONCA 709, 97 O.R. (3d) 241, at para. 117.
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