Equitable Remedies

Equitable remedies are available to a party at the discretion of the court.  There are various equitable remedies, but those commonly sought include:

• Injunction: an injunction is a court order compelling or restraining a party from doing something.  A party may seek injunctive relief to preserve the status quo pending the outcome of a substantive dispute.  For example, A contracts to sell a house to B.  A subsequently attempts to sell the property to C for a higher price.  B wishes to seek a court order requiring A to complete the sale.  In the meantime, B may seek an injunction to restrain A from selling to C (or any other party) until a court determines whether the property should be sold to B in accordance with the contract;

• Specific performance: where a court issues an order requiring a party to perform a specific act.  To use the example above, the court would order A to sell the subject property to B;

• Account of profits: this is most often used where there has been an allegation of breach of fiduciary duty (someone who has a legal or ethical relationship of trust with another or others) to recover any profits taken as a result of the breach, thereby preventing an unjust enrichment;

• Rescission: this equitable remedy allows an innocent party to effectively cancel the contract, thereby unwinding the transaction.  It may be sought where there has been misrepresentation, mistake, duress or undue influence which (as an example) leads a party to enter into a contract that they would not have entered into except for the vitiating factor;

• Rectification: this relates to the court ordering a change to a written document to ensure that it states what it should have stated in the first place;

• Equitable estoppel: where a court may order a person be prevented or “estopped” from going back on their word or restraining a person from taking a particular position where it would be inequitable for them to do so.  For instance, A tells B he will allow B to rent his property for a lower rent for a particular period of time if B undertakes certain improvements and then A subsequently attempts to increase the rent early.

Paula Sutherland has extensive experience dealing with claims involving equitable remedies; acting for both plaintiffs and defendants and appearing as counsel.

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