Specific Performance In A Property Dispute Through Summary Judgment Motion

A 2022 decision by Madam Justice A. K. Mitchell highlights how summary judgment motions can be an effective tool to obtain specific performance more expeditiously and in a cost effective manner than a trial in property disputes.

In Canadian Entertainment Properties Inc. v. 2680432 Ontario Inc. et al ("CEP v. 268"), the plaintiff sold a 56 acre property to the defendants subject to various terms and conditions contained in a written agreement of purchase and sale (APS). Under the APS, the defendants had agreed among other things, to facilitate the severance of a defined 7-acre parcel from the rest of the property and subsequently re-convey the 7-acre parcel back to the plaintiff. However, when called upon by the plaintiff to fulfill this obligation following the closing, the defendants refused, and litigation ensued. In the litigation, the defendants were found by the court to have delayed and obstructed, resulting in wasted time and legal resources.

The plaintiff brought a motion for summary judgment to attempt to regain its 7 acre parcel without having to proceed all of the way to and through a trial. The presiding judge, Justice Mitchell reviewed the test for summary judgment, the relevant principles of law, and ultimately granted judgment in the plaintiff's favour – ordering specific performance against the defendants in order to re-convey the agreed upon 7-acre parcel back to the plaintiff.

In her decision, Justice Mitchell reviewed the role of Rule 20 and the test for summary judgment; and relied on what has been referred to as one of the general principles in determining whether summary judgment is appropriate:

"It is presumed that the judge will use these powers unless it is in the interest of justice for them to be exercised only at trial. Whether or not a trial is required in the interests of justice will be driven by the underlying objective of the rule which is to promote access to justice by ensuring the process is proportional to the dispute".

Justice Mitchell reviewed the evidence in support of the defence and found it to be uncorroborated and inconsistent with prior evidence given at examinations. Further, the defence evidence extended beyond the four corners of the written contract. Justice Mitchell held that no material provisions of the APS were ambiguous or uncertain and as such, extraneous evidence relating to the subject intensions of the parties was not admissible. The defendants completed the purchase and must be held to the terms of the APS. The plaintiff met the test for specific performance as the 7 acre parcel was demonstrated to hold special significance to it.

This cases serves as a good reminder that in the proper circumstances, a party should carefully consider the potential costs— money, time, delay, and stress— associated with proceeding to a conventional trial and look at other options. In some cases, such as CEP v. 268, when these costs are considered, a summary judgment motion may prove a more efficient and effective alternative to a trial.