Specific Performance: Contracts of Personal Service
| Author | Jeffrey Berryman |
| Pages | 409-425 |
409
CH AP TER 14
SPECIFIC
PER FOR M ANCE:
CONTRACTS OF
PERSONAL SERVICE
A. INTRODUCT ION
The enforcement of contracts of personal serv ice raises particul ar
concerns for courts. The contract itself is un like others in that it is
heavily imbued with complex soci al and political overtones, as for
most people their livelihood is a central part of their well-being. As
well, employment law has undergone dramatic legi slative change,
often as a result of substantive pri nciples and judicial practices being
out of step wit h contemporar y condition s and attitudes. Legislation
creating specia lty administrative tribunals for both unionized and
non-unionized workers has removed from court s 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 dist inction 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 di screte 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 import ant role. Disputes concerning this t ype
of contract will be heard by l abour arbitrators or Labour Relations
Boards and, inf requently, by courts. The employment relationship may
be covered by a collective agreement, and often the remedy imposed
by an arbitrator or board will b e reinstatement. In some jurisdictions,
THE LAW OF EQUITABLE RE MEDIES410
reinstatement is considered the pr imary remedy.1 However, where the
employment contract is not covered by a collective agreement, any
movement toward granting reinst atement (i.e., specific performance)
must be reconciled with the employer’s categorical right to ter minate
employment on giving reasonable notice. Where the contract i s 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 t his area has been t hat 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 indirect ly. 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 per sonal service contract, although the frequency
of requests would appear to remain low.
B. TRADITIONAL APPROACH
The traditional rule th at specific performance would not be granted of
a contract for personal serv ice,2 was underpinned by essentially four
concerns: (1) a lack of mutuality in th at one party could not compel
the other to actually perform t he service promised, (2) difficulty with
court supervision of the decree, (3) the perception that enforcement
of a personal serv ice decree was tantamount to involuntary ser vitude,
and (4) resistance to forcing part ies back into a relationship where trust
and confidence had been lost.3
Lack of mutuality has a lready been discussed.4 There it was seen
that the objective behind mutualit y is simply to give the defendant ad-
1 See, for example, in New Z ealand Employment Rela tions Act 2000, 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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