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Real Property - Uniqueness. Halliday-Shaw v. Grieco
In Halliday-Shaw v. Grieco (Ont CA, 2023) the Court of Appeal considered the uniqueness of real estate and specific performance:[12] Nor did the motion judge err in awarding specific performance, or in explaining his decision to do so. The ultimate test for specific performance is whether “a plaintiff has shown that the land rather than its monetary equivalent better serves justice between the parties”: Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, 25 RPR (6th) 117, at para. 71. The motion judge clearly came to this conclusion, holding that on the facts before him, “specific performance of the contract is the most appropriate remedy, given the unique characteristics of the subject Property.”
[13] In his reasons for decision, the motion judge explained why the property was unique by expressing his acceptance of the respondents’ evidence and that of their real estate broker, evidence that leaves no reasonable room for disputing the finding that the property is unique. Mr. Grieco nonetheless argues that the motion judge erred by failing to expressly address all of the factors “typically” considered by judges considering specific performance, namely, “(i) 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”: Lucas, at para. 71. Mr. Grieco argues that he committed a legal error by considering only factor (i). We do not accept this submission. The typical factors considered are non-exhaustive, overlapping factors, and not all need to be present to support a finding of specific performance. Moreover, judges are presumed to know the law and are not required to deal explicitly in their reasons with every factor they consider. A judge’s reasons must be read in the context of the evidentiary record as a whole. The evidentiary record in this case burgeoned with reasons supporting the motion judge’s decision to grant specific performance. . Cannon v. Gerrits
In Cannon v. Gerrits (Div Court, 2022) the Divisional Court considered the 'uniqueness' of real property, here as a factor in granting a certificate of pending litigation:Did the motion judge erroneously assess the uniqueness of the property?
[59] The appellants submit the motion judge erred in the application of legal principles to assess whether the subject property was unique.
[60] One of the factors to be considered to determine whether a moving party has satisfied the onus of establishing that the property is unique is that it cannot be readily duplicated elsewhere: see John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. 2003 CanLII 52131 (ON CA), 2003, 63 O.R. (3d) 304, 223 D.L.R. (4th) 541 (C.A.), at para. 39.
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[69] In Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52 (“Lucas”), Brown J.A. writing for the Court of Appeal for Ontario stated as follows:[73] In assessing whether a property is unique, courts may have regard to: (a) a property’s physical attributes; (b) the purchaser’s subjective interests, or (c) the circumstances of the underlying transaction. While physical and subjective uniqueness of property will usually be significant in cases where a purchaser – as opposed to a vendor – seeks specific performance, the types of uniqueness are not exclusive and no difference in evidential weight should be given to one form over another: Jeffrey Berryman, The Law of Equitable Remedies, 2nd ed. (Toronto: Irwin Law, 2013), at pp. 355-57.
[74] Uniqueness does not mean singularity or incomparability. Instead, it means that the property has a quality (or qualities) making it especially suitable for the proposed use that cannot be readily duplicated elsewhere: Dodge (S.C.), at para. 60. For example, a rising real estate market, particularly where the purchaser’s deposit remains tied up by the vendor, may indicate that the transaction could not have been readily duplicated or that other properties were not readily available at the time of breach within the plaintiff’s price range: Walker v. Jones (2008), 2008 CanLII 47725 (ON SC), 298 D.L.R. (4th) 344, at para. 165; Sivasubramaniam v. Mohammad, 2018 ONSC 3073, 98 R.P.R. (5th) 130, at para. 84 and 92, aff’d 2019 ONCA 242, 100 R.P.R. (5th) 1.
[75] The court should examine the subjective uniqueness of the property from the point of view of the plaintiff at the time of contracting: Dodge (S.C.), at para. 59. The court must also determine objectively whether the plaintiff has demonstrated that the property or the transaction has characteristics that make an award of damages inadequate for that particular plaintiff: Dodge (S.C.), at para. 59; Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 430 D.L.R. (4th) 296, at paras. 70-73, leave to appeal refused, [2019] S.C.C.A. No. 55.
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