- Ontario courts have long treated real property — land and buildings — as inherently unique, on the reasoning that no two parcels of land are ever truly identical, even if they are…
- Courts look at whether an equivalent substitute is realistically available on the market — not whether the item is emotionally or sentimentally important to the plaintiff.
- By contrast, standard commercial goods — inventory, off-the-shelf equipment, commodities — are rarely treated as unique, because a buyer can usually go out and purchase a functional…
Most people know that Ontario courts can order specific performance to force through a real estate deal — land has long been treated as unique. Fewer people realize the same remedy can, in narrower circumstances, apply to personal property too: a rare piece of art, shares in a closely held company, a custom-built asset, or another item with no true substitute on the open market.
This article explains the uniqueness test that applies to personal property claims for specific performance, where it tends to succeed, and why it remains a harder case to make than a real estate claim.
Why Real Property Gets Special Treatment
Ontario courts have long treated real property — land and buildings — as inherently unique, on the reasoning that no two parcels of land are ever truly identical, even if they are similar in size, location, and price. That history once meant uniqueness was largely taken as a given for land, but courts no longer grant specific performance in real estate cases as a matter of course: a plaintiff still has to show that the particular property has qualities that make damages an inadequate substitute. In practice that is far easier to establish for land than for goods — but it does have to be established.
Personal property does not get that same presumption. A plaintiff seeking specific performance over goods, shares, or other personal property has to actually demonstrate that the specific item is not readily replaceable.
What Makes Personal Property "Unique" Enough
Courts look at whether an equivalent substitute is realistically available on the market — not whether the item is emotionally or sentimentally important to the plaintiff. Relevant considerations include:
- Rarity — is this a one-of-a-kind item, or one of very few in existence?
- Market availability — could the plaintiff reasonably go out and buy something equivalent?
- Fungibility — is the item interchangeable with others of the same type (like standard commercial goods), or does it have distinguishing characteristics that matter to the deal?
- Purpose of the contract — did the parties’ agreement itself treat the item as irreplaceable (for example, a contract for a specific numbered piece rather than "one of this model")?
Categories Where Uniqueness Claims Tend to Arise
| Category | Why it might qualify |
|---|---|
| Fine art, antiques, collectibles | Often genuinely one-of-a-kind, with no equivalent substitute |
| Shares in a closely held (private) company | May carry control, voting rights, or a relationship with the business that money cannot replicate |
| Custom-built or bespoke goods | Built to specification, with no equivalent readily available off-the-shelf |
| Rare business inputs or components | Occasionally unique where no substitute supplier exists on comparable terms |
By contrast, standard commercial goods — inventory, off-the-shelf equipment, commodities — are rarely treated as unique, because a buyer can usually go out and purchase a functional equivalent, with damages covering any price difference or delay.
Building the Case for Uniqueness
- [ ] Gather evidence of the item’s rarity — appraisals, expert opinions, or market data showing no comparable substitute exists
- [ ] Document the specific role the item plays in the underlying deal, not just its general value
- [ ] Show that a damages award would leave you worse off than actually receiving the item, not just less convenient
- [ ] Move promptly — delay in seeking specific performance can itself undermine the claim
- [ ] Be prepared to show you are ready, willing, and able to perform your own side of the bargain
Why This Is a Harder Case Than It Sounds
Even where an item has some distinguishing features, courts remain cautious about specific performance outside real estate, because ordering someone to hand over a specific item — rather than pay money — is a more intrusive remedy, and one the court may need to enforce directly. Plaintiffs sometimes overestimate how "unique" a court will find their situation; genuine market unavailability is the key test, not personal attachment to the deal.
Frequently asked questions
Can I get specific performance for a used car or standard equipment?
Generally not, unless there is something genuinely irreplaceable about that specific item beyond it simply being useful to you. Standard, mass-produced goods are usually treated as adequately compensated through damages, since a functional replacement is normally available.
Do shares in a public company ever qualify as unique?
It is much harder to argue uniqueness for publicly traded shares, since they are, by definition, fungible and readily bought on the open market. Uniqueness claims are far more plausible for shares in a private company, particularly where control or a specific ownership stake is at stake.
What if the seller already sold the item to someone else?
If the item has already been sold to a third party who bought it in good faith, specific performance against the original seller may no longer be practically available, and the claim may shift toward damages instead. The details depend heavily on the facts, including what the buyer knew.
How quickly do I need to act if I want to claim specific performance?
Promptly. Delay in asserting the claim can undermine an argument for specific performance, separate from Ontario’s general limitation periods for starting a claim at all. If you believe you have a uniqueness-based claim, it is worth speaking with a lawyer as soon as possible.
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