In Carr v Rivet, 2019 ONSC 1546, the Ontario Superior Court recently dismissed a motion to discharge a certificate of pending litigation (“CPL”). In doing so, the Court held that a waterfront cottage on Talon Lake was sufficiently unique to form the basis of a claim for specific performance.
Importantly, in addition to finding that the particular cottage was specifically unique to the plaintiffs, the Court noted that most waterfront properties are, by their nature, unique. Unlike mass-produced properties, each waterfront property possesses different exposure and other water-related features that make it unique.
The day after their real estate transaction was supposed to close, the Plaintiffs commenced an action seeking specific performance. Subsequently, the Plaintiffs successfully brought an ex parte motion to register a CPL against the property. The Defendant then moved to discharge the CPL arguing, among other things, that the property was not sufficiently unique to support a claim for specific performance.
The common law once presumed that every piece of land was unique. The Supreme Court of Canada departed from this view in Semelhago v Paramadevan. It held that “specific performance should, therefore, 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.”
Waterfront Properties in General
The Superior Court noted that, in general, most waterfront properties are naturally unique from one another:
“The exposure of every property is, to some extent at least, unique. So, too, is the waterfront, the lake bottom, the vegetation and the topography. Waterfront properties are not like the kind of cookie-cutter real estate development that Sopinka J. had in mind when he wrote in Semelhago, at para 20:
‘Residential, business and industrial properties are all mass produced in much the same way as other consumer products. If a deal falls through for one property, another is frequently, though not always, readily available.’”
The Specific Lake Talon Cottage
In addition, the Court held that the particular property – notwithstanding that it allegedly had problems – was specifically unique to the Plaintiffs. The Court considered the following factors in support of this conclusion:
- The Plaintiffs wanted the property as a family cottage and did not intend to turn a profit from it.
- The Plaintiffs were attracted to the property in part because of its relative closeness to nearby family and friends.
- The Plaintiffs say Talon Lake is a smaller, calmer lake which is less intimidating and more manageable for them to venture out on.
- The Plaintiffs found the proximity of the property to nearby properties “just right” – not too close and not too far.
- The Plaintiffs value that the property is on pillars, which alleviates concerns about foundation and water problems.
- The Plaintiffs find that the property has the “look and feel” that they were searching for in a cottage.