Legal Ease, July 19

Suppose you made a deal to have someone come and paint your house. After you make the deal they just refuse to do the work.

Can you get a judge to order them to fulfill their agreement?

No.

What you are looking for is an order for “specific performance” that is an order forcing someone to fulfill the terms of a contract. And such an order will be granted only rarely.

Normally a court is limited to awarding damages—that is money—and that makes some sense.

After all, dealing with the painter who won’t paint, you can go out and get someone else and if that costs you money, getting a judgment for that loss will be enough. There’s nothing extraordinary about a house painter and others are available.

More to the point, forcing someone to paint a house themselves is almost likely involuntary servitude or slavery. If someone doesn’t want to do something the court generally doesn’t force them to do it—recognizing they may well have to pay damages. Usually personal service contracts will not be subject to specific performance.

Nevertheless, in very special cases where the thing contracted for is unique and nothing else will do, specific performance may be available.

The classic example is a home.

Suppose you find a house right across the street from your parents and it’s got just enough rooms for all your family. That’s a very special house—its unique—and no other house will do. As a result, a court will likely have no problem ordering that an agreement by which you buy the house will be specifically performed.

The key is the uniqueness of the property.

Now imagine an ordinary home, say in Baker Lake. Maybe there are not a lot of homes available but if you agree to buy one and the deal does not close because the seller won’t sell, the judge is not likely to force the seller to sell you the home.

The judge will look at the expenses you paid and whether you had to pay more money to buy another home and then the judge will decide how much money you are entitled to as a result of the seller not selling you the house.

The court is trying to do what is fair and so any time there is a claim for specific performance, the court will look at all the surrounding circumstances to see what is just.

The power to order specific performance comes from Equity which is an ancient power of the court to make sure, regardless of anything else, that people are treated justly.

So if the only just solution is to require specific performance, then that is what shall be ordered.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.