Case commented on: Raymond v. Raymond Estate, 2011 SKCA 58
Fifteen years ago, before the Supreme Court of Canada decision in Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 1996 CanLII 209 (S.C.C.), it was taken for granted that land is inherently unique and therefore, as a matter of course, the equitable remedy of specific performance would be awarded for breaches of contracts for the sale of real property. However, in Semelhago, Justice Sopinka questioned those assumptions, stating in obiter dicta on behalf of the majority that specific performance should “not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available” (at para. 22). Subsequent confusion in the case law about under what circumstances specific performance is available and the unforeseen consequences of the loss of automatic grants of specific performance in a Torrens land titles system attracted the attention of the Alberta Law Reform Institute (ALRI). Its October 2009 Final Report No. 97 on Contract for the Sale and Purchase of Land: Purchasers’ Remedies recommended (at paras. 8, 61) that “for the purpose of determining whether a purchaser under a contract for the sale of land is entitled to specific performance of the contract, the land that is the subject of the contract be conclusively deemed to be unique at all material times, and legislation should be enacted to that effect”. However, no such legislation has been tabled in the Alberta legislature in the past 18 months. Now, the May 2011 decision of the Saskatchewan Court of Appeal in Raymond v. Raymond Estate suggests that ALRI’s recommendation, even if enacted, may not be enough to return the law to its pre-Semelhago state. It does so by holding that Semelhago introduced a two part test for the granting of specific performance, with an objective component and a subjective one. It appears that the ALRI recommendation only addresses the objective component.