Specific performance is an elusive but powerful remedy for enforcing contractual obligations, especially in real estate transactions. In the recent decision, Moran v 1715664 Alberta Inc., 2026 ABKB 50[1], the Alberta Court of King’s Bench (the “Court”) found that one’s credit profile satisfied the uniqueness requirement and justified granting specific performance. The decision further confirms that in interpreting contractual provisions, the Court will be guided by principles of commercial practicality and reasonableness.

Background

This case arose from an agreement concerning ten condominium units in Lethbridge, Alberta. Under the agreement, the plaintiffs transferred title to the units to the defendant in exchange for $1 and the defendant’s “assumption” of the associated mortgages. Although title was transferred and several units were subsequently sold, the defendant was unable to qualify for financing to assume the mortgages on the remaining units and thereby release the plaintiffs from their obligations to the lenders.[2]

The agreement did not address the parties’ respective obligations when the mortgages came up for renewal. As a result, while the defendant continued to make the mortgage payments, the plaintiffs remained legally responsible for the mortgages and were required to renew them in their own names.[3]

The plaintiffs ultimately brought a claim against the defendant for failing to assume the mortgages as mortgagor, alleging breach of contract and seeking specific performance of the contract or an order that the units be sold and the sale proceeds applied to the remaining mortgages.[4]

The key issues before the Court were the proper interpretation of the phrases “assumption of the mortgages” and “assumption of the balances owing on the mortgages,” neither of which was defined in the agreement, and whether specific performance was the appropriate remedy.[5]

Practicality is a principal consideration in contract interpretation

The plaintiffs argued that a proper interpretation of the contract required the defendant to assume all obligations as mortgagor or borrower (i.e. step in the shoes as mortgagor) and release the plaintiffs from these obligations. The defendant argued that the contract only required him to make payments on the mortgage, without any further contractual obligations with any mortgagee or lender.[6]

The Court rejected the defendant’s argument, primarily based on the commercial realities that flowed from one interpretation compared to another. This included:

  • the fact that 23 years were remaining on the mortgages’ amortization period at the time of signing the contracts, with renewals to occur within one to two years;[7]
  • the defendant’s interpretation would require the plaintiffs to use their personal credit rating to continue to remortgage the properties, to the defendant’s benefit; [8]
  • the purpose of the contract, being between a vendor and purchaser, was for the plaintiffs to sell their 10 condo units to the defendant. The Court determined this purpose to be inconsistent with the plaintiffs having a continued obligation to hold and renew the mortgages for up to 23 years. This would impact their credit and ability to borrow other funds;[9]
  • the contract provided no consideration to the plaintiffs for their continued obligation to remortgage the properties for the defendant’s benefit, which would include the defendant enjoying a lower interest rate than if it held the mortgages as mortgagors.[10]

In short, the Court construed the agreement in a manner consistent with commercial practicality and reasonableness. It concluded that the objective intentions of the parties, viewed in light of the surrounding circumstances, were that the defendant would assume the mortgages as mortgagor and secure the plaintiffs’ release from those obligations. The Court found that the defendant had clearly breached its obligation in this regard.[11] In reaching that conclusion, the Court emphasized that it would not consider the parties’ subjective recollections of discussions surrounding the formation of the agreement, nor their subsequent conduct or communications, as doing so would offend the parol evidence rule.[12]

Worth Noting: The defendant, a real estate lawyer, had drafted the agreement. The Court observed that, had the parties intended only that the defendant assume responsibility for making the mortgage payments, rather than assuming the mortgages themselves, different language could and would have been used.[13] While not expressly stated, the decision suggests that the defendant’s interpretation of the agreement was scrutinized in light of his legal expertise and role in drafting the contract.

When is specific performance the appropriate remedy?

The contract did not specify what was to occur if either party breached their obligations, nor did it set out applicable remedies in the event of a breach.[14]  As the plaintiffs did not suffer any monetary loss from defendant’s breach, they instead sought specific performance of the defendant’s obligation to assume the mortgages, failing which, the properties should be sold and the remaining mortgages discharged.[15]

In determining the issue, the Court went through the leading case law with respect to specific performance, noting that it is a “discretionary, equitable, remedy, whereby the court orders a party to do what it has contracted to do”.[16] There must be “some fair, real, and substantial justification for the plaintiff’s preference for performance over an award of damages” and it will only be available where damages are inadequate because of some “particular and special value” or “uniqueness” to the plaintiff’s land, which the plaintiff has the burden of proving.[17] It is an uncommon remedy, as damages are often sufficient to address the wrong. In Alberta, there are only a handful of cases in the last 10 years where courts have granted specific performance.

Rather than arguing that the condo units were “unique” or held any “special” or “particular” value, the plaintiffs argued that that the “unique” or “special” asset at risk was their credit and the potential impacts on their credit through continuing to hold the mortgages to the defendant’s benefit.[18] In accepting this argument, the Court stated as follows at paragraphs 43-47:

Credit, as an asset, means a good history, borrowing power, and debt (when used strategically) as a resource to build wealth, secure favourable borrowing terms, and achieve financial goals. It is about leveraging borrowing capacity for investments like real estate or business growth. A strong credit profile unlocks lower interest rates and broader financial opportunities. Credit is unique.

…[T]he Defendant has relied on the Plaintiffs’ strong credit profile as a resource to unlock lower interest rates than what it…could otherwise obtain.  The Defendant is using the Plaintiffs’ credit profile to unlock broader investment opportunities for itself.  In so doing, it puts the Plaintiffs’ credit profile at risk and reduces the Plaintiffs’ borrowing capacity.

It is difficult to imagine how damages are capable of compensating the Plaintiffs for the Defendant’s continued and ongoing use of their credit profile.

…

I have already found the reasonable expectations of the parties were for the Defendant, as purchaser, to take over the obligations as mortgagor and release the Plaintiffs, as vendors, from these obligations. The implied term that is necessary to give business efficacy to this agreement is found in the remedy of specific performance: if the Defendant fails to take over the obligations as mortgagor, it shall sell the properties and discharge the remaining mortgages from the sale proceeds…  

Key takeaways

The Moran decision highlights important considerations for contracting parties:

  • Attentive and explicit drafting, including the use of defined terms and remedial clauses, may help to avoid litigation and add clarity to rights and obligations. Silence provides greater discretion to the Courts and the possible remedies available, such as specific performance.
  • Commercially reasonable and practical interpretations aligning with the purpose of the contract and parties’ relationship will trump subjective recollections.
  • Uniqueness is not limited to the characteristics of the physical property but may extend to intangibles, like credit profile and obligations. The key question in determining specific performance is whether damages are an adequate remedy.

If you are dealing with a dispute concerning one of your contracts, our Commercial Litigation lawyers can assist you in assessing your contractual rights, obligations, possible remedies, and steps to take to address it.  

[1] Moran v 1715664 Alberta Inc., 2026 ABKB 50 [Moran].

[2] Ibid, paras 1-3.

[3] Ibid, paras 4 and 19.

[4] Ibid, para 5.

[5] Ibid, para 7.

[6] Ibid, paras 20-21.

[7] Ibid, para 22.

[8] Ibid, para 23.

[9] Ibid, para 24.

[10] Ibid, para 25.

[11] Ibid, paras 30-35.

[12] Ibid, paras 14.

[13] Ibid, para 32.

[14] Para 36.

[15] Para 37.

[16] Para 38.

[17] Paras 39-41, citing Southcott Estates Inc v Toronto Catholic District School Board, 2012 SCC 51 at paras 35-36 and Semelhago v Paramadevan, 1996 CanLII 209 (SCC), [1996] 2 SCR 415 at para 21. 

[18] Para 42.

[19] Para 41.