This was an Appeal of a decision, Pittman Brothers Production Ltd v Evans, 2022 ABQB 541, where the Chamber’s Judge summarily dismissed the Appellant's claim for specific performance and discharged the associated caveat and certificate of lis pendens, holding that damages would be an adequate remedy. In the Chamber’s Decision, the Appellant, a farming corporation, sought specific performance for the purchase of farmland from the Respondents.

The grounds of Appeal included: 1) the Chambers Judge erred in placing the burden on the Appellant to demonstrate that a substitute property was not available; 2) the Chambers Judge erred in not considering the behaviour of the Respondents with respect to the availability of specific performance; 3) the Chambers Judge erred in granting partial Summary Judgment where such Judgment does not dispose or substantially dispose of the litigation; and 4) the Chambers Judge erred in determining that this was an appropriate case for Summary Judgment.

Justices Antonio and Grosse, in relation to Summary Judgment pursuant to Rule 7.3, determined that the Chambers Judge correctly outlined the test and burden of Summary Judgment. However, they found an error in law as the Judge required the Appellant to prove that substitute property was not readily available or that the disputed lands were unique enough to warrant specific performance in order to raise a triable issue. The Court of Appeal pointed out that the Chambers Judge suggested that the Appellant could not raise a triable issue without actively seeking alternate land, but evidence of an unsuccessful search for alternate land by the claimant is not a prerequisite for a successful claim for specific performance. Additionally, the Court highlighted that the Chambers Judge did not hear oral evidence, leading to a genuine issue for Trial regarding the availability of comparable properties and the adequacy of damages as a remedy based on the existing record.

The Court stressed that specific performance could still be suitable due to the unique suitability of the disputed lands for the Appellant's farming operations and the complexity of calculating damages for lost production. Consequently, the Appeal was granted, and the Order dismissing the claim for specific performance and removing the caveat and certificate of lis pendens was overturned.