R. Jukier, “The Emergence of Specific Performance as a Major Remedy in Quebec Law” (1987) 47 Can. Bar Rev. 47

R. Jukier, “The Emergence of Specific Performance as a Major Remedy in Quebec Law” (1987) 47 Can. Bar Rev. 47.

1. 
   The Traditionally Restricted Ambit of SP: In theory, SP is the classic civil law remedy.  It's the principal remedy in France, and in Quebec doctrine says it's on par with damages, but in practice courts have applied it restrictively, especially where it involves an obligation to DO something.
   

1. 
   The Influence of the Common Law Approach to SP: QC judges have been inclined to view the CCP injunction as a remedy borrowed from the Common Law, so they apply it restrictively the way Common Law courts do.  Many QC decisions have adopted the Common Law position that SP will not lie where damages are an effective remedy. Jukier says this judicial attitude should have no place in QC because it challenges the theoretical availability of SP as an equal remedy in Civil Law, and it challenges the principle that the creditor gets to choose his remedy.  The judiciary is finally acknowledging this contradiction, in Societe Coinamatic v. Armstrong (1984 QCCA) and Restaurant Jasmo v. Drouin (1986 QCSC).  There's a trend away from Common Law style application of SP, but recent jurisprudence hasn't been uniform.
   
2. 
   The Nemo Praecise Rule: There's a rule in Civil Law against forcing a person to do an act by physical violence or constraint, because he'll only do a half-ass job anyway, and because it contravenes individual liberty.  But where the constraint lies on the debtor's property, instead of his person, the rule is not infringed.  In France, SP is granted for all obligations except artistic activities and personal services.  The SCC said in Nault v. Canadian Consumer Co. (1981) that a judgment can't order SP for a contract of sale of an uncertain or indeterminate thing. QC courts have said SP is only appropriate where the debtor could get a third party to do the required act.
   
3. 
   The Dichotomy b/w Enforcement of Obligations To Do and Obligations Not To Do: The judiciary has created this illogical and artificial dichotomy, because of the 1897 CCP and the nemo praecise rule.  Jukier says it's unjustifiable because the nemo rule should apply equally to obligations to do and not to do, since both involve just as much personal action, and because it's often difficult to classify what's a positive and what's a negative obligation, as evidenced by inconsistent case law.
   
4. 
   Problems of Supervision: It's harder to supervise an order to DO something.  In the Common Law, SPwill usually be refused where it would require a complex series of acts or the maintenance of an ongoing relationship.  This played a large role in the first PCC case, above.  But recent Common Law authorities don't see supervision as such a big problem anymore. Some say the real question is whether there is a sufficient definition of what has to be done to comply with the court order.  This liberal attitude is catching on in QC.
   
5. 
   Civil Imprisonment: Doctrine argues against SP because failure to perform the SP order can lead to imprisonment for contempt of court, and there should be no imprisonment for civil matters, since the 1965 CCP was enacted.  Jukier says this is bunk because the
   imprisonment IS for the contempt of court, which IS criminal, not for the failure to perform, which is civil.  And anyways that argument never stopped courts from granting prohibitive injunctions, so why should mandatory injunctions be any different?
   

2. 
   Emerging Jurisprudential Trends
   

2. The Effect of the Second PCC Decisions

Hurtubise J. spoke out definitively against the reliance by QC courts on the
restrictive Common Law position relating to SP.  The judiciary had been ignoring the legislator's intent, in the 1965 CCP, by keeping the restrictive approach.


CONCLUSION

Three factors have expanded the availability of SP:

Jukier hopes this trend will continue, because the creditor should get to choose his remedy, and SP will often be a better remedy for the creditor, because damages can take a long time to come through, whereas an injunction can have immediate results.  Also, commercial parties just want to continue operations, not get compensation.  Finally, SP is better because it enforces the Autonomous Will of the Parties, which is supposed to be the foundation of the Civil Law of contracts.