Southcott Estates Inc. V. Toronto Catholic District School Board - Certainty And Specific Performance

In the decision of Southcott Estates Inc. v. Toronto Catholic District School Board, dealt with more fully by my colleague Stephen Mulrain, the Supreme Court of Canada addressed the question of whether a plaintiff seeking specific performance of a real estate transaction justifies a failure to mitigate its damages.

I disagree with Stephen, who argues that the minority judgment of Chief Justice McLachlin recognizes the inconsistency of requiring mitigation where a claim for specific performance is validly pursued.  

In my opinion, the majority decision written by Justice Karakatsanis adds some welcome certainty with respect to the relationship between a claim for specific performance and the duty of a plaintiff to mitigate its damages. It is consistent with, and reaffirms the Supreme Court of Canada's prior cases on the availability of specific performance as a remedy in real estate development cases.