“Having dispensed with these procedural issues, this court must determine whether the certificate of pending litigation should be placed on the property in this case.
As stated in 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003, relying on Interrent International Properties Inc. v. 1167750 Ontario Inc., [2013] O.J. No. 3385 (S.C.J.), “The Court may only grant leave to register a CPL where it is satisfied that there is a triable issue in respect of the moving party’s claim to an interest in the land.” In Kim, Justice Petersen was satisfied that there was a triable issue with respect to the Applicant’s claim to an interest in the land. However, the court went on to consider other relevant factors, before ultimately concluding that it would not be just to grant leave to register the certificate of pending litigation. The court stated:
31 A distillation of the case law and review of s. 103(6) of the Courts of Justice Act establish that the following are relevant factors for consideration on a contested Motion for leave to issue a CPL: (i) whether the land in question is unique, (ii) whether there is an alternative claim for damages, (iii) the ease or difficulty of calculating damages, (iv) whether damages would be a satisfactory remedy, (v) the presence or absence of a willing purchaser, (vi) the balance of convenience, or potential harm to each party, if the CPL is or is not granted, (vii) whether the CPL appears to be for an improper purpose, (viii) whether the interests of the party seeking the CPL can be adequately protected by another form of security and (ix) whether the moving party has prosecuted the proceeding with reasonable diligence. This is not an exhaustive list.
Fairly recently in the case of Guz v. Olszowka, 2019 ONSC 5308 (CanLII), Justice Broad discussed the ordering of a certificate of pending litigation in the context of an estate matter. The court stated as follows:
27 The principles which have application on a motion to discharge a CPL were succinctly summarized by Master Glustein (as he then was) in Perruzza v. Spatone, 2010 ONSC 841 (Ont. S.C.J.) at para. 20 as follows:
(i) The test on a motion for leave to issue a CPL made on notice to the defendants is the same as the test on a motion to discharge a CPL (Homebuilder Inc. v. Man-Sonic Industries Inc., 1987 CarswellOnt 499 (Ont. S.C.) (“Homebuilder”) at para. 1);
(ii) The threshold in respect of the “interest in land” issue on a motion respecting a CPL (as that factor is set out at section 103(6) of the Courts of Justice Act, R.S.O. 1990, c. C. 43) is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed (1152939 Ontario Ltd. v. 2055835 Ontario Ltd., 2007 CarswellOnt 756 (Ont. S.C.J.), as per van Rensburg J., citing Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Ont. Gen. Div. [Commercial List]) at para. 62);
(iii) The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has “a reasonable claim to the interest in the land claimed” (G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA), 2002 CarswellOnt 219 (Ont. C.A.) at para. 20);
(iv) Factors the court can consider on a motion to discharge a CPL include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security (572383 Ontario Inc. v. Dhunna, 1987 CarswellOnt 551 (Ont. S.C.) at paras. 10-18); and
(v) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated (931473 Ontario Ltd. v. Coldwell Banker Canada Inc., 1991 CarswellOnt 460 (Ont. Gen. Div.); Clock Investments Ltd. v. Hardwood Estates Ltd., 1977 CanLII 1414 (ON SC), 1977 CarswellOnt 1026 (Ont. Div. Ct.) at para. 9).
28 In determining the question of whether there is a triable issue as to an interest in land on a motion to discharge or issue a CPL, the court does not assess the credibility of deponents or decide disputed issues of fact (see HarbourEdge Mortgage Investment Corp. v. Community Trust Co., 2016 ONSC 448 (Ont. S.C.J.) at para. 45).
See also Marmak Holdings Inc. v. Miletta Maplecrete Holdings Ltd. et al., 2019 ONSC 4630.”