Tuesday, February 10, 2015

Is Uniqueness of Land A Requirement for Injunctive Relief?

Since the Supreme Court decision in Semelhago v. Paramadevan,  [1996] 2 SCR 415 it has been widely accepted that specific performance for the sale of land is not presumed because it "cannot be assumed that damages for breach of contract for the purchase and sale of real estate will be an inadequate remedy " (at par. 21). 

As a result, where there is an alleged breach of contract and a remedy other than damages is sought in the context of real estate, one of the issues live before the Court is uniqueness of the property.  To show a good case the plaintiff must show that damages will not suffice.

This view has meant that uniqueness has been an issue in real estate cases where an injunction is sought. 

That said the Court of Appeal recently released a decision that suggests that where real estate is in play special considerations will apply and damages will be presumed not to be sufficient.  In  1465152 Ontario Limited v. Amexon Development Inc., 2015 ONCA 86 the Court reviewed  Pointe East Windsor Limited v. Windsor (City), 2014 ONCA 467, 374 D.L.R. (4th) 380.  Pointe East Windsor Limited v. Windsor (City) unsurprisingly, held that equitable relief, such as a permanent injunction, is only available where damages are an inadequate remedy for the harm suffered.

Despite Pointe East Windsor Limited v. Windsor (City), the Court in 1465152 Ontario Limited v. Amexon Development Inc., held that where an injunction is sought there is a strong inclination towards preserving a property right – something functionally the same as a presumption that damages will be an inadequate remedy for a loss of real property rights.  The Court holds:   

[23]       As the law in Ontario currently stands, different considerations apply in the latter circumstance, as was explained in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (consulted on 30 January 2015), (Toronto: Canada Law Book, 2014), at 4.10 and 4.20:

Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favored.  This is especially so in the case of direct infringement in the nature of trespass.

The reason for the primacy of injunctive relief is that an injunction more accurately reflects the substantive definition of property than does a damages award.  It is the very essence of the concept of property that the owner should not be deprived without consent. An injunction brings to bear coercive powers to vindicate that right.  Compensatory damages for a continuous and wrongful interference with a property interest offers only limited protection in that the plaintiff is, in effect, deprived of property without consent at an objectively determined price.  Special justification is required for damages rather than an injunction if the principle of autonomous control over property is to be preserved.  A damages award rather than an injunction permits the defendant to carry on interfering with the plaintiff's property.  [Footnotes omitted.]




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