Canadian Lawyer

Real Estate "The result is a specific performance claim — once regarded as the cleanest and simplest way of resolving a breach of contract claim in property cases — is no longer considered viable in most circumstances." Matthew Halpin, Norton Rose Canada LLP In her reasons for judgment, penned on behalf of the majority of the Supreme Court, Justice Andromache Karakatsanis cited legal texts in asserting that a plaintiff deprived of investment property does not have a substantial and legitimate interest in specific performance, unless he can show that the land has a peculiar and special value. "Southcott could not make such a claim," she wrote. "It was engaged in a commercial transaction for the purpose of making a profit. The property's particular qualities were only of value due to their ability to further profitability." In this respect, the SCC agreed with both the Ontario Court of Appeal and the trial judge, who rejected the specific performance claim and went on to consider compensation for damages. The trial judge awarded Southcott damages in the amount of $1,935,500 which represented the loss of a 60-per-cent chance to make profits in the amount of $3,225,827. The Supreme Court, however, upheld the decision of the Court of Appeal to reduce this amount to $1. The reason: the developers didn't take any steps to try to mitigate their loss, which they would be expected to do with regards to a claim for damages, but not if they had been successful in claiming specific performance. The SCC and Court of Appeal rejected Southcott's reasons for failing to mitigate. The developer asserted it didn't have the funds available to buy new properties since it was a single purpose company with no other assets. But the judges observed that Southcott was part of a large conglomerate of companies that had ample resources. Furthermore, it was noted that funds would obviously have been made available to Southcott if it had proceeded to buy the property and develop it, so these funds could have been diverted to purchase a replacement property. At trial, the school board led evidence to show 81 pieces of vacant land were sold in the Greater Toronto Area between the time of the breach and the date of the trial. Corporations within the Ballantry Group bought seven parcels of land for development during that period. The trial judge found there was no evidence the properties up for sale could have been profitably developed and no evidence they were comparable to the school board property. After re-examining this evidence, the SCC concluded that Southcott was not justified in failing to mitigate. UNIQUE COVERAGE OF NEW TRENDS THAT WILL SHAPE THE FUTURE OF THE CANADIAN JUSTICE SYSTEM NEW EDITION ANNUAL REVIEW OF CIVIL LITIGATION 2012 EditEd by thE honourablE Mr. JusticE todd l. archibald and thE latE honourablE Mr. JusticE randall scott Echlin Get the title regularly cited by appellate courts, including the supreme court of canada. this authoritative text has provided unique, leading edge coverage of topical civil litigation issues for more than 10 years. ORdER # 985026-65203 $155 hardcover approx. 600 pages october 2012 978-0-7798-5026-6 annual volumes supplied on standing order subscription Multiple copy discounts available Ask AbOUT OUR dIsCOUNT OF Up TO 50% ON pAsT EdITIONs* *Offer expires December 31, 2012. Offer not valid in conjunction with any other Carswell offer. 22 Jan uary 2013 www.CANADIAN TOpICs COVEREd The Art and Science of Persuasion – Courtroom Cognitive Psychology • Defamation Law • Justiciability • Unjust Enrichment • Contract Interpretation • Tort Claims in Employment Cases • Choice of Law and Manufacturers Liability • Frustration of Contract • Class Action Reform • Brokers' Liability • Guide to Attacking and Defending Public and Private Investigations • Limited Liability • Solicitor-Client Privilege Also included in this edition is a Consolidated Table of Contents, which provides a summary of all articles published in the Annual Review of Civil Litigation since its inception in 2001. AvAIlAblE RIsk-FREE FOR 30 DAys Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 L a w ye r m a g . c o m

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