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Ever since the decision of the Supreme Court of Canada in Semelhago v. Paramadevan , which changed the law on the availability of specific performance for breach of contract, property developers have found the door to that remedy effectively closed. The recent decision of the Supreme Court in Southcott Estates Inc. v. Toronto Catholic District School Board confirms that trajectory despite the valiant attempts by some developers to bring their cases within the rubric of the Semelhago decision. However, Southcott is not so much a case about specific performance, as it is a case about the obligation to mitigate, and how a defendant can prove that a plaintiff has failed to make reasonable efforts to mitigate. It is also a case where the plaintiff sought to plead that it was a ‘volume buyer’, the obverse of a ‘volume seller’, and whether this fact meant that it did not have to take the profit from a subsequent purchase into account as an act of mitigation.
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Class actions have an established place in Canadian and Australian legal systems but still attract considerable debate in practice, politics and the academy. One debate concerns whether there is any legitimate justification for class actions beyond the procedural facilitation of grouped proceedings. ‘Access to justice’ and ‘judicial economy’ are the goals commonly said to justify class action provisions. On one view, these goals can be achieved through civil procedures that have compensation as their sole remedial goal. At the same time, many jurisdictions that have created class action regimes also provide as another justification, the promotion of behavioural modification and deterrence of wrongdoers. The principal way behaviour is modified and deterrence is achieved is by ensuring that the wrongdoer is forced to internalise all the costs of any harm that may have resulted from the wrongful act, and - depending on the particular facts of the case and whether the cause of action supports recovery of profits - to disgorge any profits earned from the wrongful conduct. Compensating victims may partially and concurrently achieve deterrence if all victims can be identified and the true nature of their loss quantified. However, in many claims where a class action may be the most advantageous mechanism to compensate victims, not all victims may be able to be identified or, because the amount of each class member’s claim is small, the cost of administering the claim may outweigh any benefit to individual class members.
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Shortlisted for the 2003 Walter Owen Book Prize (first edition)This new edition traces the development in the Canadian law of equitable remedies, greatly influenced by decisions of the Supreme Court of Canada which, since the first edition, has ruled on the availability of Anton Piller orders, specific performance, equitable compensation, and rectification. Beyond these substantive equitable remedies the Supreme Court has also opined on a number of occasions about the nature of modern equity in Canada; in effect, breathing life into equity's distinctive methodology. New areas covered in this edition include the maxims of equity; the appropriate default test for interlocutory injunctions including new discussion on when it is appropriate to allow a view of the merits of the substantive dispute to determine the interlocutory proceedings; the general principles of specific performance, including a critique of the current law on enforcement of keep-open clauses; the contemporary impact of the Supreme Court of Canada's rulings on the availability of specific performance, particularly for those who invest in land; a discussion of equitable damages and equitable compensation which includes new commentary on when damages are assessed that go beyond compensation and toward disgorgement; and new material on rectification, including a section on rectification and taxation cases.