- The most fundamental defence is simply that money would fully compensate the plaintiff.
- A court can refuse specific performance where forcing the defendant to perform would cause hardship disproportionate to any benefit the plaintiff would gain.
- Equitable remedies like specific performance are less forgiving of delay than a straightforward damages claim.
Being sued for specific performance does not mean you are out of options. Because specific performance is an equitable remedy — granted at a court’s discretion rather than as of right — Ontario courts recognize a range of defences that can defeat the claim even where a breach of contract is otherwise clear. If you are facing a claim demanding you go through with a deal, understanding these defences is the first step in assessing your position.
This article walks through the main grounds Ontario courts consider when deciding whether to refuse specific performance, even where the plaintiff has technically proven a breach.
Damages Would Be an Adequate Remedy
The most fundamental defence is simply that money would fully compensate the plaintiff. Since specific performance is only available where damages are inadequate, showing that the plaintiff can be made whole through a monetary award — because a comparable substitute is available, or because the subject matter is not genuinely unique — can defeat the claim on its own, without even reaching the other defences below.
Undue Hardship
A court can refuse specific performance where forcing the defendant to perform would cause hardship disproportionate to any benefit the plaintiff would gain. This is not simply "it would be inconvenient" — courts look for a meaningful imbalance between the burden of performance and what the plaintiff actually stands to gain from getting the specific item or deal rather than compensation.
Delay (Laches)
Equitable remedies like specific performance are less forgiving of delay than a straightforward damages claim. A plaintiff who sits on a specific performance claim for an extended period — especially where circumstances have changed in the meantime, or where the delay has prejudiced the defendant — can lose the ability to claim it, separate and apart from Ontario’s general limitation periods for starting a lawsuit at all.
Unclean Hands
Because specific performance is an equitable remedy, courts can refuse to grant it where the plaintiff’s own conduct in relation to the contract or the dispute has been improper — for example, if the plaintiff was themselves in serious breach, acted in bad faith, or tried to take advantage of the defendant during the deal. The principle is that a plaintiff asking a court for a discretionary remedy needs to come to court with reasonably clean hands.
Lack of Mutuality or Fairness in the Bargain
Courts are generally reluctant to force through a bargain that was unfair or one-sided at the time it was made, or where the plaintiff would not have been equally bound to perform their own side. Specific performance is meant to hold both parties to a fair bargain, not to rescue an advantageous deal that the underlying facts do not support enforcing in kind.
Impossibility or Impracticality
If circumstances have changed such that performance is now impossible, or so impractical that ordering it would serve little purpose, a court is unlikely to compel it. This can include situations where the specific property or item involved has been destroyed, transferred to an innocent third party, or otherwise become unavailable.
The Plaintiff Is Not Ready, Willing, and Able to Perform
A plaintiff seeking specific performance generally has to show they were, and remain, ready, willing, and able to fulfill their own obligations under the contract. A defendant can raise the plaintiff’s own inability or unwillingness to perform as a defence to the claim.
A Quick Reference
- [ ] Would damages fully compensate the plaintiff? If so, that alone can end the claim.
- [ ] Has the plaintiff delayed unreasonably in bringing the claim?
- [ ] Has the plaintiff engaged in misconduct connected to the contract or the dispute?
- [ ] Would performance now be disproportionately harsh on the defendant?
- [ ] Is performance still realistically possible?
- [ ] Can the plaintiff show they were, and remain, ready and able to perform their own side?
A "yes" to several of these does not guarantee success, since courts weigh all of the circumstances together, but each is a recognized starting point for resisting a specific performance claim.
Frequently asked questions
Can I raise more than one defence at the same time?
Yes. These defences are not mutually exclusive, and defendants regularly raise several together — for example, arguing both that damages are adequate and that the plaintiff delayed unreasonably in bringing the claim.
Does raising a defence mean I admit the contract was breached?
Not necessarily. Many of these defences can be raised as an alternative argument, addressing what remedy should apply even while separately disputing whether a breach occurred at all. A lawyer can help structure your defence to preserve both arguments.
If specific performance is refused, does that end the case?
No. If a court declines to order specific performance, the plaintiff can generally still pursue damages instead for the same breach. Defeating a specific performance claim does not necessarily mean defeating the underlying lawsuit.
How is "undue hardship" actually proven?
There is no fixed formula — it depends on the specific facts, including the defendant’s circumstances, what performance would actually require, and how that compares to the plaintiff’s alternative of accepting damages. This is highly fact-specific, and evidence matters more than general assertions of hardship.
This is a litigation question
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