Specific Performance: Contracts of Personal Service

AuthorJeffrey Berryman
Pages409-425
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.

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