Specific Performance: Contracts of Personal Service

• Author: Jeffrey Berryman
• Pages: 409-425

409

CHAPTER 14

SPECIFIC

PERFORMANCE:

CONTRACTS OF

PERSONAL SERVICE

A. INTRODUCTION

The enforcement of contracts of personal service raises particular

concerns for courts. The contract itself is unlike others in that it is

heavily imbued with complex social and political overtones, as for

most people their livelihood is a central part of their well-being. As

well, employment law has undergone dramatic legislative change,

often as a result of substantive principles and judicial practices being

out of step with contemporary conditions and attitudes. Legislation

creating specialty administrative tribunals for both unionized and

non-unionized workers has removed from courts much jurisdiction

over employment contracts. It has also transformed the issues, which

are no longer adjudicated under the principles of private contract law

but are now under the rubric of judicial review of admi nistrative action.

An important distinction to make is between personal services

which are part of a general contract of employment, and where per-

sonal services are the services offered under a discrete contract or by

a person who to all outward appearances would appear to be acting

as an independent contractor. In the former contract, statutory labour

law provisions play an important role. Disputes concerning this type

of contract will be heard by labour arbitrators or Labour Relations

Boards and, infrequently, by courts. The employment relationship may

be covered by a collective agreement, and often the remedy imposed

by an arbitrator or board will be reinstatement. In some jurisdictions,

THE LAW OF EQUITABLE REMEDIES410

reinstatement is considered the primary remedy.1 However, where the

employment contract is not covered by a collective agreement, any

movement toward granting reinstatement (i.e., specif‌ic performance)

must be reconciled with the employer’s categorical right to terminate

employment on giving reasonable notice. Where the contract is one for

services of a personal nature, such as a sports star, doctor, or company

director, different issues are at play. There is unlikely to be a power

imbalance between the parties, but there may be a heightened sense

of trust, conf‌idence, and loyalty expected by the employee. How and

whether these facets should be accommodated in a claim for reinstate-

ment is a complex issue for courts.

The traditional rule in this area has been that courts would not

order specif‌ic performance of a contract of personal service. However,

even when this rule was being formulated, the use of an injunction to

restrain breach of a negative stipulat ion often appeared to grant sp ecif‌ic

performance indirectly. While reverence is still paid to the traditional

principle, it does not accurately ref‌lect the position today. Courts are

now more willing to grant specif‌ic performance or an injunction re-

straining breach of a personal service contract, although the frequency

of requests would appear to remain low.

B. TRADITIONAL APPROACH

The traditional rule that specif‌ic performance would not be granted of

a contract for personal service,2 was underpinned by essentially four

concerns: (1) a lack of mutuality in that one party could not compel

the other to actually perform the service promised, (2) diff‌iculty with

court supervision of the decree, (3) the perception that enforcement

of a personal service decree was tantamount to involuntary servitude,

and (4) resistance to forcing part ies back into a relationship where trust

and conf‌idence had been lost.3

Lack of mutuality has already been discussed.4 There it was seen

that the objective behind mutuality is simply to give the defendant ad-

1 See, for example, in New Z ealand Employment Rela tions Act2000, ss. 123 and

125.

2 Historica lly, some contracts of p ersonal service were of ten enforced by crimi-

nal proceedi ngs: see D. Cohen, “The Relationship of Contrac tual Remedies to

Political and Soc ial Status: A Prelimi nary Inquiry” (1982) 32 U.T.L.J. 31.

3 See G.H. Jones & W. Goodhart, Specif‌ic Perform ance,2d ed. (London: Butter-

worths, 1996) at 169.

4 See Chapter 10, Section E.