Factors denied by vendor not sufficient to deprive subject property of its unique character

Plaintiff purchasers and defendant vendor entered agreement for purchase and sale of residential waterfront property. When vendor refused to complete transaction in accordance with agreement, purchasers brought action for specific performance and special damages or, alternatively, damages. Purchasers first ex parte motion for certificate of pending litigation (CPL) was dismissed on basis material failed to establish property was sufficiently unique to warrant order for specific performance. Their second motion was granted after they filed affidavit claiming property was particularly suitable for their needs because of easy vehicular access via municipally maintained road, as opposed to private road they would have to maintain, ultraviolet water purification system, electrical service to shed, which they hoped to turn into additional sleeping quarters, lake's reputation for clean water and nature of waterfront, including lack of weeds, reeds or other dense aquatic vegetation. Vendor claimed none of those statements was true and brought motion for order discharging CPL on basis order for specific performance would not be available. Motion dismissed. Most waterfront properties were, by their very nature, unique. They were not the sort of cookie-cutter real estate authorities were thinking of when they determined whether order for specific performance would be available remedy. None of the factors denied by vendor were sufficient to deprive subject property of its unique character, particularly given purchasers' additional claim they had chosen it because of proximity to family and friends. Given risk damages would not be adequate remedy, purchasers alternative claim for damages did not deprive them of right to CPL.

Carr v. Rivet (2019), 2019 CarswellOnt 3441, 2019 ONSC 1546, Ellies J. (Ont. S.C.J.).