In a departure from tradition, the Ontario Superior Court of Justice recently handed down judgments indicating a shift in the perception of specific performance as an “extraordinary” remedy in the context of commercial real estate disputes. As noted in an article by Blake, Cassels & Graydon LLP, this could herald a significant change in legal practices surrounding such disputes.
Typically, courts handling commercial real estate litigation have turned to the remedy of damages, awarding the successful party an amount of money that financially equates to the performance of the contract. This monetary award acts as a form of compensation for a breach of contract and is intended to put the harmed party in the position they would have been in had the contract been fulfilled.
Conversely, specific performance is a legal remedy that literally forces the party to fulfil their part of the contract. Traditionally considered an exceptional remedy, specific performance is usually only prescribed if damages are an inadequate form of compensation or if the contract relates to something unique, such as a particular piece of property.
However, in these recent instances, the Ontario Superior Court of Justice has indicated its willingness to employ the specific performance remedy more readily in commercial real estate disputes. This endorsement from the court could signal an evolution in how future disputes of this nature are handled. In the instances under review, the court seemed to have reversed its position on the unique attributes of specific performance.
Legal practitioners in the realm of commercial real estate will be observing closely as the outcomes of these recent cases may prompt a shift in legal strategies going forward. With this shift in judicial stance, it is crucial for legal professionals in this field to stay abreast and accordingly adapt their tactics and approaches to better serve the needs of the corporations and firms they represent.